'-S-

.**

SOME REMINISCENCES

By
WILLIAM L. ROYALL

New York and Washington

THE NEALE PUBLISHING COMPANY

1909

V

LIBRARY of CONGRESS
Two CcDies Received

MAh 18 1M09

L.<^ Cuwn«(it Entry ^
COHY J. •

Copyrighted, 1909, by
THE NEALE PUBLISHING COMPANY

CONTENTS

CHAPTER PAGE

I The War 9

II Events in Richmond — Duelling 65

III The State Debt — The Presidency .... 100

IV The Trusts i54

V Free Silver and Politics 195

SOME REMINISCENCES

CHAPTER I

THE WAR

I was born on November 15, 1844, at my
father's place, Mount Ephraim, in the lower end
of Fauquier County, Virginia. Our home was, in
summer, the most beautiful place I have ever seen.
It was a large brick house situated upon a com-
manding bluff directly on the Rappahannock River,
with broad low grounds directly in front and high
bluffs heavily timbered upon the Culpeper side of
the river, with the Blue Ridge Mountains looming
up some forty miles away. We were comfortably
well off, owning some fifteen slaves, a farm of one
thousand acres, with enough money at interest to
supply us with what the farm did not furnish. It
was an ideal home and a happy one.

My grandmother, who was Chief Justice Mar-
shall's youngest sister, lived with us. When she
was a young girl she married George Keith Taylor,
a very distinguished lawyer of Petersburg, Vir-
ginia. John Adams appointed him one of his
midnight judges. I have always thought that
those judicial appointments testify powerfully to
the influence that John Marshall had even so early

lo SOME REMINISCENCES

as that. Adams appointed his brother-in-law one
of these judges, his brother another, and gave the
pkim to John himself.

My grandmother was the most intellectual per-
son that I have ever known. She lived in our fam-
ily until 1867, when she died at the age of eighty-
five, I was raised at her knee and she taught me
all that I ever learned during the school period.
Sir John Falstaff says, "If I know what the inside
of a church is made of, I am a pepper-corn," I
can say the same of a schoolhouse, I have never to
this day seen the inside of one. My grandmother
hated Thomas Jefferson as if he had been the
Devil, and in that I have no doubt she reflected
the views of the Chief Justice. But at any rate,
she thought him the embodiment of all evil, I
have heard her often denounce him as centering in
himself all that was dangerous to the American
people. Federalism versus Democracy.

In i860 the people of Virginia were strongly in
favor of the Union, But when Mr, Lincoln called
for troops to coerce the States south of us, opinion
in Virginia changed in the twinkling of an eye.
The entire population became unanimous for sid-
ing with the States to the south and resisting
coercion to the death.

In March, 1862, at the age of seventeen, I vol-
unteered as a Confederate soldier, joining Com-
pany A, Ninth Virginia Cavalry. From the foun-

SOME REMINISCENCES ii

dation of the colony Virginians have been devoted
to fine horses, and in 1861 the State was as well
supplied with throroughbred and partially thor-
oughbred horses as with sheep and cattle. The
half-bred horse is the best for a saddle horse. In
the Confederate cavalry the men furnished their
own horses, the government agreeing to pay for
them if they were killed. The young men in Vir-
ginia were all perfect horsemen, and mounted on
their thoroughbred or half-bred horses they made
a magnificent spectacle in regimental formation.

My regiment was as fine as any in the Confed-
erate service, and our colonel was Wm. H. F. Lee,
a splendid officer, and son of Gen. Robert E. Lee.
We were very proud of this.

How the Confederate cavalry performed the
feats it did perform in the early part of the war is
more than I can comprehend, for not one company
in ten had any arms that were fit to fight with.
When I joined my company I was given a saber
which I think was used in the Revolution, and this
was the only weapon given me. One day in June,
1862, while my regiment was standing in a road
I bantered a comrade to see which of us could cut
the largest twig from a tree. I made a powerful
ait and the blade of my saber broke off at the hilt.
In a short time we were dismounted and ordered to
clear the Yankees out of a piece of woods in skir-
mish formation. We marched through the woods.

12 SOME REMINISCENCES

but fortunately no Yankees were there. I have
often wondered what I should have done, armed
with that saber hilt, if I had met a Yankee armed
with a Springfield musket. A comrade to whom I
mentioned this said he knew what I would have
done — I would have turned around and run like
smoke, and I suspect he was right.

I was in the Seven Days' battles around Rich-
mond, in Second Manassas, in Sharpsburg or An-
tietam, in Fredericksburg, and in Chancellorsville,
besides, in that same time, in a hundred cavalry
battles, many of which would have been called
"great battles" in the Cuban war.

I cannot help pausing to refer to one of these,
the battle of Brandy Station or Fleetwood, on
June 9, 1863. That was a fight to stir the heart
of any soldier. Gen. J. E. B. Stuart, commander
of the cavalry of Gen. Lee's army and in many re-
spects the greatest cavalry soldier that ever lived,
had collected all of his cavalry in the great plains
that lie between Culpeper Court House and Brandy
Station. The Confederate army was then engaged
in the movement from Fredericksburg by way of
Culpeper Court House to the Valley of Virginia to
move forward to Gettysburg, Pennsylvania.

On June 7 Stuart ordered out his whole com-
mand, more than eight thousand horsemen, to pass
in review before Gen. Robert E. Lee. It was a
noble sight, a sight that no one could ever forget.

SOME REMINISCENCES 13

Next morning Stuart was hastily summoned to
move down to the Rappahannock River to face
General Pleasanton, who was crossing with all the
cavalry of the Army of the Potomac, supported by
several brigades of infantry, in an effort to pene-
trate the operations known to be going on in Gen-
eral Lee's army. This resulted in an all-day battle
on June 9 between the cavalry forces of the two
armies. It was a great battle, nobly supported by
both sides. One incident of it has remained viv-
idly impressed upon my mind. Our colonel, W.
H. F. Lee, had been promoted to brigadier-general,
and my regiment was in his brigade. About 4
o'clock in the afternoon Lee put himself at the
head of my regiment which was at the foot of a
hill out in the open field, standing in column of
fours, and gave the order to charge up the hill, he
riding at the head of the regiment. I was very
near to the head of the column and could see all
that took place. When we got to the summit of
the hill, there, some two hundred yards awav, stood
a long line of blue-coated cavalry. Lee did not
hesitate an instant but dashed at the center of this
line with his column of fours. The Yankees were
of course cut in two at once, but each of their
flanks closed in on our column, and then a most
terrible affray with sabers and pistols took place.
We got the best of it, and we had soon killed,
wounded, or captured almost all of them. They

14 SOME REMINISCENCES

had a good many more men over beyond the hill,
but the thing was over before the others could
come to their assistance.

We drew off back under the hill and then com-
menced to take stock of the situation. It at once
appeared that Capt. Tom Towson, captain of my
company, was missing. The major of the regi-
ment called for two volunteers from my company
to go up on the hill and hunt for Captain Towson.
Robert W. Monroe and myself rode out and said
we would do it. We went up there in plain sight
of the enemy, but seeing that we were on an errand
of mercy not a shot was fired at us. We found
Towson stone dead, and I brought him down be-
fore the whole regiment across the neck of my
horse. I mention this last incident because I have
heard of a braggart member of my company telling
that he and I did this thing, when Monroe and I
did it. He saw me come down the hill with Tow-
son, and long after the war, when he thought most
of the witnesses were dead, he thought he would
be safe in playing the hero of the event.

This was the beginning of the movement to Get-
tysburg. The infantry and artillery crossed the
Blue Ridge range of mountains into the Valley of
Virginia, and the cavalry remained upon the east-
ern side of the mountains to mask the movement.
We moved along up into the upper part of Fau-

SOME REMINISCENCES 15

quier and Loudoun counties. When we had got to
Aldie in Loudoun County, General Pleasanton, at
the head of all the cavalry of the Army of the Po-
tomac, thought it was time for him to be looking
into the case, and he attacked us furiously there.
We had two or three days of tremendous cavalry
battles, in which the success of each side was about
the same, and many gallant men lost their lives.
Finally Pleasanton drew off without having got up
on the Blue Ridge Mountains to see what was go-
ing on in the valley below.

Then General Stuart marched off on what I have
always thought the wildest of wild-goose chases.
Why such a splendid soldier as Stuart should have
done it passes my comprehension. Obviously the
thing for him to do was to put himself upon Gen-
eral Lee's right flank, between him and his enemy,
to Inform General Lee, as far as possible, of what
that enemy was doing. But Stuart marched away
from Lee around the Army of the Potomac, and
was entirely lost to Lee for a week or more. If
any one will take a map of Virginia, Mai7land,and
Pennsylvania and trace Stuart's course I feel confi-
dent he will be amazed at it. When he saw that
Pleasanton had abandoned his attempt to interfere
with Lee, Stuart was near Paris Gap In Fauquier
County. He set out and marched straight to
Brentsville In Prince William County, thence he
Struck out for the Potomac at Rowson's Ford, near

i6 SOME REMINISCENCES

Rockville, Maryland, and from there to Hanover,
Pennsylvania, where he had a severe battle with
the enemy's cavalry, and thence he made his way
to Gettysburg, where he joined General Lee on the
second day of the battle.

I consider myself qualified to speak as an expert
on the battle of Gettysburg. I became so qualified
in this manner: In 1895 I was the editorial writer
of the Richmond Times. In one of my articles I
spoke of the unparalleled heroism of Pickett's
charge of Virginians at Gettysburg. Some North
Carolinians took me up on this and said I was as-
cribing to Virginians credit that belonged to North
Carolinians. I was very much shocked at this, and
for two reasons. I had always understood that
Pickett's Virginians had carried off the honors of
the day, and I did not like to see these honors torn
from my fellow Virginians. Again, the idea of
having done an injustice to my comrades from
North Carolina stung me very acutely. I resolved
therefore to study Gettysburg and find out the
facts. I got the records and carefully studied
every line that had been written about it, and at the
end I felt that I knew my ground and could speak
with confidence upon every phase of the battle. I
accordingly wrote an address upon the battle, and
the Confederate Army and Navy Society of Mary-
land coming to know of it, invited me to deliver it
before them in Baltimore and I did so on the even-
ing of January 20, 1896.

SOME REMINISCENCES 17

I have received two compliments upon this ad-
dress which I prize very highly. I sent a copy of
it to Lord Wolseley, at that time commander-in-
chief of the English army, and he wrote me a very
nice letter about it, in which he asked me to let him
have it published in the United Service Magazine,
the mouthpiece of the English Army and Navy.
It can be readily imagined that I gave my consent,
and it was published in that magazine for April
and May, 1897, but was credited to W. S. Reyall,
First Virginia Cavali^ — the glory of war, to have
your leg shot off and have your name misspelled
in the Gazette !

The other compliment was this. The late his-
torian, John C. Ropes of Boston, was an intimate
friend of Capt. W. Gordon McCabe of Richmond.
Shortly before his death he paid McCabe a visit
of several weeks, and myself and Judge James
Keith, Chief Justice of Virginia, called upon him.
Ropes had read my address, and he spoke to
me of it in very complimentary terms, saying he
had filed it away amongst his choicest pamphlets
for future use and reference. When Judge Keith
and I told Ropes that we had both served as pri-
vates in the Confederate Army, and that all of our
fellows had done the same, he was immensely sur-
prised and said that fact gave him more informa-
tion about the Confederate armies than all he had
ever read.

i8 SOME REMINISCENCES

What I am going to say now about Gettysburg
in a condensed form can be seen in detail in
that address, with reference to official documents
to sustain every statement. Incidentally I will say
here that General Lee was considerably outmatched
in the battle. He had 62,000 men while General
Meade had 105,000.

The absence of General Lee's cavalry caused
the battle to come on through pure accident, and
without any preparations or plans for it. Heth's
division of Hill's corps having arrived near Get-
tysburg on July I, undertook to march into the
town to get some shoes. Just outside the town they
met Buford's division of Federal cavalry, and a
brisk skirmish commenced. The rest of Hill's
corps was steadily arriving and Ewell's corps, re-
turning from York, commenced arriving at the
same time. On the Union side the First and Elev-
enth Corps were up, and they joined with Buford
in repelling the attack, so that in a short time there
was a very brisk action in progress between from
twenty to twenty-five thousand men on each side.
The battle was splendidly fought on both sides,
but ended in a complete triumph for the Confed-
erates, the First and Eleventh Corps being almost
destroyed. There were not more than six thousand
of these two corps available for duty when the
battle was over.

General Lee arrived upon the field just at the

SOME REMINISCENCES 19

conclusion of the battle, and saw the remnants
of the First and Eleventh Corps scampering over
the hills behind Gettysburg. While he was stand-
ing in the field watching this interesting spectacle
General Longstreet rode up and reported. On
being asked how near his corps was he replied that
he could have two divisions, Hood's and McLaw's,
up for business by daylight next morning, but that
Pickett's division was nearly a day's march behind.
General Lee told him then and there to get his
men up as quickly as possible, as he intended to
attack the enemy next morning at daylight if he
was there.

The situation next morning, July 2, was this.
The Twelfth Corps of the Union army arrived
during the night and went into line at Meade's ex-
treme right on Gulp's Hill. Their line was ex-
tended round the curve by the remnants of the
First and Eleventh Corps and there was nothing
else from their left to Round Top. About eight
thousand of the Third Corps arrived at General
Meade's left during the night and went in bivouac.
This was the whole Federal force on the field for a
battle at early morn on the second. They made
about twenty-five thousand men, with an unfilled
gap in their line between Round Top and the left
of the Eleventh Corps.

What was General Lee's situation? All of
Hill's and Ewell's corps were up and in line, and

20 SOME REMINISCENCES

two-thirds of Longstreet's corps were near enough
to be in Hne at dayHght. In some way Lee had
become possessed of the information that but a
small part of Meade's army had arrived at Gettys-
burg, and he determined to attack them at daylight
on the morning of the 2nd. He gave the neces-
sary orders to Ewell and Hill, and having person-
ally told Longstreet on the afternoon of the ist to
get his command up by light next morning, he
rested on his oars waiting for Longstreet's men to
arrive. Next morning he was up and had break-
fast when day broke. About light Longstreet ar-
rived with his two divisions and Lee ordered him
to get ready and attack Meade's line between
Round Top and Gettysburg. But as Pickett was
not up Longstreet did not want to make the attack,
so he entered into a warm argument with Lee in an
endeavor to persuade him to postpone the attack.
He upset Lee's resolution and caused the attack to
be postponed until four in the afternoon, at which
time all of General Meade's army was up, and the
whole advantage that had accrued to the Confed-
erates from the situation in the morning had dis-
appeared. General Longstreet is responsible, there-
fore, for General Lee's failing to inflict an awful
disaster on General Meade on the morning of July
2, perhaps the utter destruction of his army. If
Longstreet had done what Lee wanted, the
Twelfth Corps, the remnants of the First and

SOME REMINISCENCES 21

Eleventh Corps, and the two divisions of the
Third Corps would have been routed by 5 o'clock.
The Second, Hancock's force, arrived on the field
of battle at 7 A. m. and it would, of course, have
been routed in a very short time. The Fifth
Corps began to arrive at 8 A. M. and it would have
met the same fate. The Sixth did not begin to ar-
rive until the afternoon, so that Lee would have
fought Meade's army by fragments with the whole
of his own army. The result of such a conflict
cannot be a matter of doubt. General Longstreet,
therefore, by his contumacy (the word is not too
strong) lost the Confederates the battle of Gettys-
burg on July 2. He equally lost it for them on
July 3, but before showing this there is an outside
matter I wish to relate.

General Longstreet did not attack until 4 p. M.,
July 2. But when he did attack he fought one of
the most splendid battles that ever was fought.
Longstreet was a great soldier on the field of
battle. His defect was obstinacy and procrastina-
tion, but when once engaged all of that generally
disappeared and he was usually as prompt and
fiery as Stonewall Jackson himself. On the after-
noon of July 2 he handled his adversaries so
roughly that they were very glad when nightfall
came on.

Now General Meade had never been satisfied
with the position at Gettysburg. He was in posi-

22 SOME REMINISCENCES

tions forced on him by chance and never selected
by him. During the night of July 2 he called a
council of war of his chief generals and told them
plainly that he thought the army should abandon
its position and get to another nearer its base of
supplies. It is said that a majority of the generals
wanted to stay there and fight it out but the last
thing Meade said to them was, "This is no place
to fight a battle." Whilst he was in this hesitating
mood an Incident occurred that determined him to
stay at Gettysburg and fight it out.

When General Lee started on his trip to Gettys-
burg he wrote Mr. Davis urging that every soldier
that could be spared in other parts of the Confeder-
acy should be collected at Culpeper Court House
under the command of General Beauregard to
make a threatening demonstration against Wash-
ington. Even "the effigy of an army" (his words)
with Beauregard's name attached to it would afford
him great relief. General Lee was so intent upon
this that the last thing he did before crossing the
Potomac was to write another letter to Mr. Davis
urging that this should be done.

There was every reason in the world why Mr.
Davis should have done what General Lee asked.
In the first place it was obviously the right thing
to do. In the second place, General Lee wanted it
done and whatever he wanted done should have
been done if it were possible to do it. He was

SOME REMINISCENCES 23

undertaking one of the great events in the world's
history with means utterly inadequate to the end,
and whatever he asked for in the way of assistance
should have been given him if it were possible.
The student of the records will find that there were
35,000 soldiers and 125 guns along the coast that
could have been easily put at Culpeper Court
House before July i, as I show further on. It was
inexcusable in Mr. Davis to make no effort to
carry out General Lee's wish. Instead of doing
this, he wrote General Lee telling him it was im-
possible to do what he wished, and trusted it to a
single cavalryman to carry it through a hostile
country to General Lee.

One of the leakiest things in the world was the
Confederate War Office, and Lee had hardly asked
for this force to be put at Culpeper Court House
before it was known in Washington, and Meade
fought the first two days' battles with the fear of
an attack upon his rear haunting him. Ulric
Dahlgren, son of the Admiral, was an adventurous
young captain of twenty-one on Meade's staff.
While the battle was in progress he, with a small
command, was scouting in rear of the Confederate
army, and he fell in with Mr. Davis's courier in
the streets of Greencastle and searched him and
got his letter. On reading the letter he saw the im-
portance of getting it to General Meade, and so
he rode hard and handed it to him just as the

24 SOME REMINISCENCES

council of war ended. The probabilities all are that
Meade was going to change his position at Gettys-
burg, leaving the Confederates the moral effect of
a great victory gained there, but that this informa-
tion relieving him from all fear as to his rear, de-
termined him to stay there and fight the third day's
battle.

General Longstreet caused the Confederates to
lose the third day's battle by not carrying out Gen-
eral Lee's orders to him. Lee directed that artillery
should be sent in front of the infantry that charged
the Federal line. If this had been done the terrific
artillery fire that decimated Pickett's division
would all have fallen on this artillery, and when
Pickett's division got to the stone wall, instead of
being a mere fragment of itself it would have been
in full force. As it was, it cut through the Federal
line. What might not have been the result if it
had been united with Anderson's division directly
behind it as General Lee expected would be the
case, to make good what It had won? But to
understand all this my lecture must be read as
printed.

There is one curious thing about this matter.
The North Carolinians say they went farthest
at Gettysburg. But General Longstreet says in
his official report that they went to pieces under the
artillery fire in crossing the field and that their
principal losses were incurred In quitting their
work.

SOME REMINISCENCES 25

Before leaving the war there are one or two
phases and Incidents of it that I wish to record.
I missed Gettysburg, and how I missed it opens up
a much debated question and that question is,
whether or not General J. E. B. Stuart is to blame
for not being there with General Lee when he ar-
rived there. My good friend. Colonel John S.
Mosby, the famous partisan ranger, has written a
great deal, and especially a most interesting book
recently published, to prove that Stuart was not to
blame for not being there, and that his absence
caused no injury to Lee. Notwithstanding all he
has said, however, I, for one, am of the opinion
that Stuart ought to have crossed the Potomac at
Shepherdstown and ridden on Lee's right flank
all the way. The man is a fool that contends that
Stuart disobeyed orders in riding around the Fed-
eral army. General Lee's orders to him plainly
permitted him to do this, but the point is that
Stuart ought not to have exercised the discretion
conferred upon him. His hard horse sense ought to
have told him to stick to Lee. That was the place
where he was wanted. But what I want to point
out is that the criticism of Stuart is really not criti-
cism. It is a lamentation that so great and power-
ful a man as he was was not at Lee's right hand to
counsel and advise with him about what was best
to be done.

While Lee was moving down the Valley of Vir-

26 SOME REMINISCENCES

ginia with Hooker absolutely perplexed about his
whereabouts, as I have said before, Pleasanton
took it into his head to ride up to the top of the
Blue Ridge Mountains at Ashby's Gap and take a
peep over in the valley to see if Lee was really
there. But when he got to Aldie and Middleburg
he encountered Jeb Stuart and his cavalry right
there for the purpose of preventing Mr. Pleasan-
ton from doing that identical thing. There was
tremendous fighting there for two or three days,
Stuart gradually falling back to the mountains;
but after awhile Pleasanton resolved to give it up.
Stuart then determined to exercise the discretion
that Lee had conferred upon him. He determined
to ride around Hooker's army, between him and
Washington City. He started straight from Ash-
by's Gap toward Brentville, some twenty or thirty
miles. The roads there are limestone pikes. My
horse having lost all of his shoes, he became so
lame, on these limestone pikes, that he could not
travel at all. I reported his condition to my com-
manding officer and asked him what I should do.
He told me to fall out of ranks and go to a black-
smith's shop and get him shod, and then to follow
along as best I could. I did this, and then rode
over into the Valley of Virginia to follow in
General Lee's track, but before I reached the army
the battle of Gettysburg had been fought. I do
not know, of course, how many men this ride cost

SOME REMINISCENCES 27

Stuart, but it is obvious that there may have been
many in my fix.

I have been very harsh in my criticisms of Gen-
eral Longstreet for his part in the battle of Gettys-
burg, but it would be a mistake to suppose that
Longstreet was always an inefficient soldier. Upon
the contrary, when once engaged in battle there
have been few more superb soldiers than he, I
got that splendid gentleman and gallant soldier,
Col. Wm. H. Palmer, who was Gen. A. P. Hill's
chief of staff, to write me the following account of
what he witnessed of General Longstreet's conduct
in the battle of the Wilderness on May 6, 1864.
This shows Longstreet at his best, and shows what
a magnificent soldier he was upon the field of
battle. He saved the day then, and if he had not
been shot down by his own men at the critical mo-
ment Grant's army would probably have been de-
stroyed, tangled up in that wilderness as it was.
Colonel Palmer's letter is as follows :

Richmond, Va., May 11, igoS.
Mr. W. L. Royall, Richmond, Va.

Dear Sir: I will endeavor to repeat a conversation
had with you as to some of the occurrences of the first
and second days of the battle of the Wilderness that came
under my observation.

We liad full notice of General Grant's movement from
around Culpeper C. H. General Longstreet's First
Corps vva'; near Gordonsvllle (lately returned from East
Tennessee), General A. P. Hill's Third Corps was

28 SOME REMINISCENCES

around Orange C. H., and General Ewell's Second Corps
to the right of Orange C. H. General Hill moved on
the plank road below Verdierville, with Heth's and Wil-
cox's divisions on the 4th of May, Anderson's division be-
ing left at Orange C. H. to protect our trains and rear.
Ewell moved below Verdierville on our left, on the old
Brock road.

Our orders on the 5th were to attack and press the
enemy. I remember that our troops as they passed be-
yond the lines erected the previous winter at Mine Run,
which they expected to occupy as before, exclaimed,
"Mars Bob is going for them this time," and the poor
fellows cheered as they pressed forward. About a mile
beyond we came to a heavy line of dismounted cavalry.
They were picked men and hard to move. We had to
thicken our skirmish line. The enemy's officers behaved
with the greatest gallantry, on horseback encouraging the
men, and exposing themselves to hold their line; finally
they gave way. We captured a number of men, and many
fine horses, and moved some distance below Parker's store
while waiting for Heth's division to form, as we could
not drive them farther with skirmishers, and had left the
infantry. Generals Lee, Hill, and Stuart rested in a large
field on the left of the road (Trapp's farm). Suddenly a
force of the enemy, in skirmishing order, came out of the
woods on the left. General Lee walked rapidly off to-
ward Heth's troops, calling for Colonel Taylor, his adju-
tant-general. General Stuart stood up and looked the
danger squarely in the face; General Hill remained as he
was. We were within pistol shot, when to our surprise
the Federal officer gave the command "right about" and
disappeared in the timber, as much alarmed at finding
himself in the presence of Confederate troops as we were
at their unexpected appearance.

A little after 3 o'clock General Heth was attacked

SOME REMINISCENCES 29

furiously. Wilcox's command, part of which had been
sent into the interval between Ewell on the Brock road
(and into which the skirmishers above described had
penetrated), was recalled and gradually put into action,
the Federals attacking at short intervals furiously, all con-
cealed by the thick woods and underbrush. The roar of
musketry was incessant, and was not relieved by any
artillery fire, nothing but deadly musketry. We had had
five of these heavy atacks. General Hill had moved six-
teen guns of Poague's and Mcintosh's battalions into the
large field (Trapp's farm) on the left of the road, and
close to the infantr>^ line. His attention was called to the
fact that there was no road by which the guns could be
moved if our infantry line should be driven .back. He
answered that he knew this, but in battle the guns must
take their chances of capture, and would help to hold the
line if the emergency pointed out should occur. The
guns were not used during the day. Near nightfall the
sixth heavy attack, bearing heavily on our extreme right,
commenced — a turning movement. General Hill exposed
himself to encourage the men, and sent me for the last
brigade he had in reserve, Lane's. I found General Lane
putting his men in a weak spot some distance to the left,
where help had been called for, and part of his brigade
already engaged. He hesitated for a moment only, and
upon my urgent demand as from General Hill, he fol-
lowed to the extreme right, where he put his troops in, as
he always did, in perfect order and effectively stayed the
threatened danger. I hurried back to the point from
which he had been taken, and found it safe. As I passed
the plank road General Stuart and Colonel Venable were
sitting on their horses listening to the increased roar of
battle on the extreme right, and one of them exclaimed,
"If night would only come!" I explained that the in-
creased roar of battle came from Lane's brigade going in.

30 SOME REMINISCENCES

and that they were such steady troops that we felt that
they could not be driven off before nightfall, and Colonel
Venable rode off to say as much to General Lee. Still
later there was an alarm from the extreme left, the enemy
pushing into the interval between Ewell and ourselves.
There was nothing out of the line except the Fifth
Alabama Battalion (125 strong) under Major Vande-
graff, who had charge of the prisoners. They went in
with a cheer, and whatever w^as before them was driven
back, and night settled down on the dreadful field — our
lines all held.

It was estimated from the prisoners we had from
different commands that Hill's two divisions of about
15,000 had held their ground in the six attacks against
40,000 men. General Ewell sent word to General Hill
that he had heard his battle, and congratulated him on
his success.

A small fire was made close to the line, and near the
right gun of Poague's battalion, for the headquarters of the
Third Corps in the field so often referred to, and soon
Generals Heth and Wilcox came for orders. They said
their lines in the woods were like a worm fence, at every
angle, and when they had undertaken to straighten them
the enemy had captured our men and we captured theirs.
General Hill told them that General Lee's orders were
to let the men rest as they were; that General Long-
street would be up by, or soon after, midnight, and would
form in the rear of the line before daylight ; and to let the
men of the Third Corps fall back after Longstreet's troops
were in position — Longstreet's troops in the first line for
the next day, Anderson's division of the Third Corps and
the other divisions forming a second line.

After midnight General Hill rode to Parker's store to
see what news General Lee had of Longstreet. General
Wilcox also rode to Parker's store. General Lee repeated
his orders.

SOME REMINISCENCES 31

What could be done toward straightening our line was
done, and the anxious night wore slowly away. The
men had marched and fought all day of the fifth, and
slept the sleep of exhaustion on the ground as the battle
left them at 9 o'clock at night. We could not sleep,
but waited for news of Longstreet ; for we knew that
at the first blush of the morning the turning attack on
our right would open with overwhelming numbers, and,
unsupported, the men must give way.

As soon as it was light General Hill rode to the left to
examine the ground in the interval between General
Ewell's troops and his, leaving me at the fire by the right
gun of Poague's battalion. Shortly after he left I looked
across the field and saw General Longstreet loping his
horse across the open. I had served in his brigade with
the First Virginia Infantry, and knew him well, but had
not seen him since his Chickamauga and Knoxville cam-
paign. As I grasped his hand I said, "Ah, General, we
have been looking for you since 12 o'clock last night.
We expect to be attacked at any moment, and are not in
any shape to resist." His answer, "My troops are not
up, I have ridden ahead," was drowned in a roar of
musketry. He rode off to form his troops in the road, and
in a moment General Hill returned, and together we rode
to the main road. As far as we could see the road was
crowded with the enemy moving forward ; our troops
slowly and in order retiring, except just at the road, where
they were holding fast. General Hill directed me to ride
to the guns, and to order them to fire obliquely across the
road. McGowan's brigade were for the most part
through the guns and forming behind them. There were
a few of our troops in front. General Hill said it could
not be delayed, the guns must open. The sixteen guns
firing, the last one reaching the enemy far in rear, did
great execution, as the road was packed with Federal

32 SOME REMINISCENCES

troops. It was unexpected, as no artillery had been used
the day before, except one gun in the road, which was
soon silenced by the enemy's skirmishers. It enabled us
to hold at the road, and soon the Texas brigade of Long-
street's corps filed behind the guns, and as they moved
into position General Longstreet rode down the line, his
horse at a walk, and addressing each company said, "Keep
cool, men, we will straighten this out in a short time —
keep cool." In the midst of the confusion his coolness and
manner was inspiring. When the Texas brigade had
formed they were moved through the guns. General Lee
rode on their flank. The tall Texan on the left lifted his
hat and called to General Lee to go back, and it was
taken up by the others. General Lee lifted his hat to
them, and moved slowly to the rear. It did not strike me
as remarkable at the time. The brigade was noted for
steadiness and courage, and had been detached from him.
It had been months since he had seen them. There was
no heroic leading. He was glad to be with them ; he was
saluting them. When the Texans moved forward General
Longstreet had no time to form more troops in front ; he
halted and faced his men as they were marching in the
road, and broke by brigades and moved them in echelon
to meet the turning movement of the enemy. It was a
beautiful movement. The Texans, part of McGowan's
and much of Davis's Mississippi brigade under Colonel
Stone and other troops of Heth and Wilcox, were holding
all the ground around the guns, and to their right across
the road ; and General Longstreet's echelon movement
caught the sweeping enemy and forced them back steadily
and surely.* In a short time he was master of the field,

* I am referring to the movement of the first moments of con-
tact. Later, Kershaw's division was stretched out on the right,
and Field's division on the left of the plank road, Anderson's
division of the Third Corps supporting. The long interval next
to Ewell was protected by Heth's and Wilcox's divisions of the

SOME REMINISCENCES 33

and everybody felt that way about it. Nothing finer was
ever done on a battlefield. Of course, we of the two
divisions of the Third Corps were sore — after putting
up such a battle the day before, to have to be found by
Longstreet's troops retiring, and in more or less confu-
sion was dreadful. They did not know anything about
their slowness in getting to the field. They only knew
that with conspicuous courage and steadiness they had
redeemed a losing battle, and saved the Army of
Northern Virginia from disaster. It was an inspiring
homecoming for the First Corps.

General Hill, with the part of Heth's and Wilcox's
divisions not engaged, moved to the left in the interval
between his troops and Ewell's to a second large field,
screened from the field in which the guns were by a strip
of woods. Before the troops came up we rode to a house
and outbuildings in the lower end of the field and dis-
mounted. We had been there only a short while when
we were startled by the breaking down of a fence just
below, and in plain view was a long line of Federal in-
fantry clearing the fence to move forw-ard. General Hill
commanded, "Mount, walk your horses, and don't look
back." When near our troops he directed me to ride to
General Lee and say if Anderson's division had arrived he
wanted a brigade of that division sent to him. Anderson's
division had just arrived. (Longstreet being late, had the
road, and Anderson's division of the Third Corps could
not reach us until all of Longstreet's troops w^ere out of
it.) The roar of musketry was far extended as I asked for
the brigade, and General Lee said, "Well, let's! see Gen-
Third Army Corps. General Longstreet had for the 6th of May
battle on the right about twenty-one thousand enlisted men. In
the battle of the 5th of May on the same ground General A. P.
Hill had only Heth's and Wilcox's divisions, about fifteen thou-
sand men, the interval on our left being unoccupied and a source
of anxiety all the afternoon.

34 SOME REMINISCENCES

eral Longstreet about it." When we got near him,
General Lee said, "General Hill wants one of Anderson's
brigades." General Longstreet said to me, "Certainly,
Colonel; which one will you take?" I said, "The lead-
ing one," and hurried back with it ; and General Hill
at once attacked the force and broke it up, capturing many
prisoners. As I passed a group of prisoners an officer
asked, "Were you not at the house a short time ago?"
I told him, "Yes." He abused his officers and said, "I
wanted to fire on you, but my colonel said 3'ou were
farmers riding from the house." Later I rode back
(everything being quiet on our line) to the plank road,
and shook hands with General Jenkins, of the South
Carolina brigade, with whom I had been associated, and
who I had not seen since the Chickamauga and East
Tennessee campaign of the First Corps. Just at this time
General Longstreet, continuing his counter-turning move-
ment, had launched Mahone's, Wofford's, and Anderson's
brigades on the extreme left of the enemy, under the
general direction of Colonel Sorrell, his adjutant-general
and chief of staff. It was in every way successful, and
part of Mahone's brigade reached the plank road in
front. As General Longstreet rode forward. General
Jenkins accompanying him, both were shot by our own
men; Jenkins being killed, also Captain Dobie, and
Orderly Bowen, of Kershaw's staff. It is hard to supply
the place of any general in direct charge of a battle, but
especially difficult in a tangled wilderness, in which we
were fighting. General Lee directed that the lines be
straightened, and we did not attack again until nearly 4
o'clock p. m., when a part of the enemy's line at the
Brock road was carried, but not held; and night settled
again on the dreadful battlefield.

We had thrown up good works along our whole line
on the evening of the 6th and morning of the 7th. Davis's

SOME REMINISCENCES 3s

Mississippi brigade, under Colonel Stone, who had held
their ground, and fought with Longstreet's troops, were
drawn from the line on the evening of the 6th, and formed
in the Trapp field near the guns, and were complimented
and thanked with earnestness and emotion by General A.
P. Hill.

Late on the 7th General Lee rode over to our line,
Heth's and Wilcox's divisions covering the interval be-
tween Longstreet's left and Ewell's right, and had a
conference with General Hill in the porch of the house.
From the roof some shingles had been broken out, and
we had a fine marine glass, and could see clearly the open
ground around Wilderness tavern over the tops of the
trees. From the constant stream of couriers and officers
we felt assured that it was General Grant's headquarters
in our view. In a field near the headquarters was a large
park of heavy guns, and as I looked these guns moved
into the road and took the road to our right, their left. I
went down and reported the movement and direction
taken by these heavy guns. It was no doubt simply con-
firmatory of numerous other reports from the cavalry and
other points of the line, that General Grant was moving
to Spottsylvania C. H. Orders were at once given for
the all-night march of Kershaw's and Field's brigades,
General Longstreet's division, now under the command of
General R. H. Anderson. The Third Army Corps moved
on the same route on the 8th of May, passing through the
burning woods, in which many a poor soul perished from
fire, who had escaped death from his wounds. We had a
small engagement with the enemy on our march, the
enemy pushing a force from near Todd's tavern. They
were moved from our path by the brigade skirmishers of
Mahone's brigade, a splendid body of sharpshooters.
General Early was now in command of the Third Army
Corps, General Hill being sick, but he followed in his
ambulance.

36 SOME REMINISCENCES

We reached what was to be the still bloodier field of
Spottsylvania C. H. early on the 9th of May.

Yours truly,
Wm. H. Palmer.

In his history of the Army of the Potomac
Swinton says the Federals were at a complete loss
to understand why Longstreet's overpowering rush
was suspended, and after mentioning that he was
shot by his own men, he adds a footnote to page
434 as follows:

"General Longstreet stated to the writer that he saw
they were his own men, but in vain shouted to them to
cease firing. He also expressed with great emphasis his
opinion of the decisive blow he would have inflicted had he
not been wounded. 'I thought,' said he, 'that we had
another Bull Run on you, for I had made my dispositions
to seize the Brock road.' "

It certainly looks as if Providence had deter-
mined that we should not succeed. Look at the
facts. Albert Sydney Johnston stricken down at
Shiloh just as he was about to inflict a death-wound
upon his enemy; Joseph E. Johnston, at Seven
Pines, Stonewall Jackson, at Chancellorsville, and
General Longstreet at the Wilderness.

It has been generally supposed that Lee had
in his Gettysburg campaign the finest army that
he ever commanded. He had veteran troops,
it is true, troops that had become accustomed to co-
operating with each other, and so far as that goes

SOME REMINISCENCES 37

to make a fine army, his army was up to a high
mark. But his troops had been starved and frozen
until men and beasts had wasted much of their
strength, and they were far from possessing that
stamina, physical and moral, which naturally be-
longed to them.

My excellent friend, Col. Wm. H. Palmer, of
Richmond, already quoted from, has made from
the War Records the following most interesting
summary of events shown by the recorcis that bear
upon that subject. It also shows what a large
body of troops were within reach for Mr. Davis
to utilize in placing the army at Culpeper Court
House that General Lee wanted formed there.
What would not have happened if these 35,000
veteran troops had been put at Culpeper Court
House under Beauregard? Colonel Palmer per-
mits me to Insert his paper here.

War Records, Series I, Vol. XXV, Part 11. Corres-
pondence, Serial Number 40.

CHANCELLORSVILLE.

R. E. Lee, March 27, 1863, to James A. Seddon, Secre-
tary of War, (page 687) : His army not supplied with
food.

R. E. Lee, March 2g, 1863, to Seddon, {page 691) :
Scouts on duty ordered away by Department without
his knowledge.

R. E. Lee, April i, 1863, to Gen. W. N. Pendleton,
(page 697) : Tells him to have his artillery horses
"grazed and browsed" in the absence of long forage.

3 8 SOME REMINISCENCES

R. E. Lee, April i6, 1863, to President Davis, {page
725) : Unable to bring his army together for want of
subsistence and forage.

R. E. Lee, April 17, 1863, to Seddon, {page 7 30) :
Army failing in health because of insufficient rations —
1/4 lb. ^acon, 18 oz. flour, 10 lbs. rice to each lOO men
every third day. Will break down when called upon
for exertion.

I internapt Colonel Palmer's narrative at this
point to insert the following on my own account.
The letter of General Lee to the Secretary of War
of March 27, 1863, referred to above, is too im-
portant not to be quoted. He says :

The troops of this portion of the army have for some
time been confined to reduced rations, consisting of eigh-
teen ounces of flour, four ounces of bacon of indifferent
quality with occasional supplies of rice, sugar and
molasses. The men are cheerful and I receive but few
complaints; still I do not think it enough to continue them
in health and vigor, and I fear that they will be unable to
endure the hardships of the approaching campaign.
Symptoms of scurvy are appearing among them, and
to supply the place of vegetables each regiment is directed
to send a daily detail to gather sassafras buds, wild
onions, garlic, lambs-quarter and poke sprouts, but for
so large an army the supply obtained is very small. I
have understood, but I do not know with what truth,
that the Army of the West and that in the department of
South Carolina and Georgia are more bountifully supplied
with provisions. I have also heard that the troops in
North Carolina receive one half pound of bacon per day.
I think this army deserves as much consideration as either

SOME REMINISCENCES 39

of those named, and if it can be supplied, respectfully ask
that it shall be similarly provided.

This letter was referred by the Secretary of
War to L. B. Northrup, Commissary-General of
Subsistence, and he made the following reply to It :

April I, 1863.

The reduction of the meat ration in General Lee's
army was mainly due to local causes, that of transporta-
tion being chief, as will appear by the following en-
dorsement on a letter received from J. H. Claiborne, com-
missary of subsistence:

Richmond, March 28, 1863

Respectfully referred to the Secretary of War, with a
statement of Mr. Hottel, my transportation agent. This
paper I directed to be prepared for the purpose of showing
the inadequacy of the transportation for bringing even
the rough articles of meat, the sugar on hand and to hand
since the 13th of December having been used as a sub-
stitute for bacon. This condition requires an instant
remedy. Mr. Hottel suggests one, viz: to reduce the
passenger trains one half.

Major W. H. Smith, from Raleigh, reports the
depots blocked up at three points, and the railroad men
prefer private freight, which they say pays better.

This army is living from hand to mouth as to meat
and bread, due to a want of means to get both meat
and wheat brought to market. Railroads worn out,
horses killed up, all obstacles beyond the reach of the
commissary-general of subsistence.

Dr. Cartwright in a lengthy report on the reduction of
the meat ration (which was referred to this bureau by the
President) urges that it be done on sanitary grounds.

40 SOME REMINISCENCES

The appearance of the men of General Lee's army
and their health confirms the opinion of Dr. Cartwright,
as to diminishing the ration, and it is recommended that
the bacon and pork rations be reduced to one fourth of
a pound throughout the army.

Well, well, well ! Does not that outdo anything
that was ever heard of? Here Is General Lee tell-
ing the Department that his soldiers are starving,
but with a heroism never shown before are making
no complaint; that he Is trying to eke out their
meager rations by making them gather sassafras
buds and wild onions — grazing them along with
the cattle — and the Department replies he must
not feed his men too high, or they will get fat,
sleek and lazy! What Is to be thought of that?

But that Is not all. Commissary-General North-
rup adds In this same communication that if a suf-
ficiently strong military guard Is furnished him he
thinks he can glean something out of the counties
of Fauquier, Loudoun, Culpeper, and Madison,
Virginia, which had been the camping-ground of
the two aiTnies during all the war. They were rich
counties and they were near at hand and conveni-
ent, and the people had hidden a little from the
Federal armies, and if he had soldiers sent with
him he thought he could drag out of those deso-
lated counties a little more. This correspondence
furnishes a key to the Incompetency of the Con-
federate civil administration In all directions. In-

SOME REMINISCENCES 41

stead of grappling with the difficulties of the case
at the source they were treated as weak men al-
ways treat exigencies, weak substitutes were re-
sorted to where there should have been nothing but
positive and energetic action. Instead of the
forcible seizure of such trains as were necessary to
bring food to the army, we have an imbecile essay
upon the peril of soldiers getting fat and lazy if
fed too high, and a suggestion that as the four
counties named might be drained of something
more, resort had better be had to them.

This correspondence furnishes a clue to the
whole civil administration of the Confederacy.
This inefficiency went on dragging the Confederate
soldier's condition down until it became pitiable in
the last degree. General Lee's army became so
ragged it could scarcely be said to be clothed at
all, and to a great extent it was without shoes.
The men received rations that were actually not
enough to keep body and soul together, but they
remained patiently at their posts fighting odds of
two or three to one every day, never murmuring,
never complaining.

I quote in this connection the following passage
from the autobiography of Gen. Benjamin F. But-
ler (page 610). Speaking of the conditions ex-
isting in the Confederate Army in the summer of
1864 he says:

42 SOME REMINISCENCES

In the matter of starvation, the fact is incontestible
that a soldier in our army would have quite easily starved
on the rations which, in the latter days of the war, were
served out to the Confederate soldiers before Petersburg.
I examined the haversacks of many Confederate soldiers
captured on picket, during the summer of 1864, and
found therein, as their rations for three days, scarcely
more than a pint of kernels of corn, none of which were
broken but only parched to blackness by the fire, and a
piece of meat, most frequently raw bacon, some three
inches long by an inch and a half wide and less than half
an inch thick. Now no Northern soldier could have lived
three days upon that, and the lank, emaciated con-
dition of the prisoners fully testifies to the meagerness of
their means of subsistence * * * With regard to cloth-
ing it was simply impossible for the Confederates at that
time and for many preceding months to have sufficient
clothing upon the bodies of their soldiers, and many
passed the wint-er barefoot.

Of course if there had been no food in the coun-
try no criticism could be made upon the Confeder-
ate civil administration for giving the army none.
But there was plenty of food if energetic action
had been taken to concentrate it for the army.

Major Lewis Ginter, who died in 1897, was
one of the most respected and beloved citizens that
Richmond ever had. During the war he was the
quartermaster of Thomas's Georgia brigade. He
was a very prosperous business man, and after the
war he made a very large fortune in the cigarette
business in the firm of Allen & Ginter. This busi-
ness developed into the great American Tobacco

SOME REMINISCENCES 43

Company, Prior to the war Gen. Robert E. Lee
knew Major Ginter well, and had the greatest con-
fidence in him and the greatest respect for him.

In 1895 the same Judge Keith, to whom I have
already referred, and myself were calling upon
Major Ginter one evening, and the starving con-
dition of our army at Petersburg in the winter and
spring of 1864-65 came under discussion. Major
Ginter made the following statement, in effect, to
us. He said that General Lee sent for him during
that time and told him to go down into North
Carolina and see if he could not find something
there to feed and clothe his army with. Ginter
said he went to Danville, Virginia, and there
found warehouses bursting with grain and meat.
On inquiring what this meant, the quartermaster in
charge said they could not get the use of any trains
to send these provisions to the army; that the sut-
lers controlled all the transportation and were
using it to carry wines and whiskey and cigars and
other such things to Richmond; that these sutlers
had the authority of the Confederate administra-
tion for what they were doing. The quartermas-
ter said that if General Lee would only say the
word they would forcibly seize the engines and
cars and send the provisions to the army. Ginter
said he went to Charlotte, North Carolina, and to
other North Carolina towns, and he found the
same conditions existing in all of them. He re-

44 SOME REMINISCENCES

turned to Petersburg and reported what he had
learned to General Lee, and he urged him to send
orders to the quartermasters to seize the trains and
send him provisions. He said General Lee walked
up and down in his tent for awhile and then said,
"No, Major, I can't do it. It would be revolu-
tionary. If the administration chooses to let this
army starve it will have to starve."

The thing happened just as Major Ginter told
it, because he was incapable of telling a falsehood;
and Judge Keith will testify I have related it just
as Major Ginter told it to us.

If the Army of Northern Virginia had been kept
supplied with food and clothing General Grant
would have found his work cut out for him when
he undertook to drive it away from Petersburg. I
don't believe the army was ever marshalled that
could have done it. The Army of Northern Vir-
ginia was not conquered. It was simply forsaken
by its government and left to perish.

It may be thought that after these bitter reflec-
tions I am still an "unreconstructed rebel." But I
am not. I have come to believe that the thing
turned out as it ought to have turned out. Slavery
and the principle of secession had to be got rid of
and the only way they could ever have been got
rid of was to fight the war to a finish.

I am a thoroughly reconstructed rebel that looks
upon the Government of the United States as his

SOME REMINISCENCES 45

government, and I am as ready to offer my life
for it as I was to offer it for the Confederate Gov-
ernment. But when I get to writing of those old
days my fighting blood gets up and all the enthusi-
asm of the period returns to me.

I return now to Colonel Palmer's narrative.

R. E. Lee, April 20, 1863, to Davis, {page 737) : Gives
points in the South (Florida and Georgia) where
supplies can be had in abundance.

R. E. Lee, May 2, 1863, to Davis, {page 407) : In-
sufficiency of cavalry in his army; points out where
cavalry regiments doing nothing can be ordered to him.
Fears disaster trom insufficiency of cavalry.

R E. Lee, May 2, 1863, to Davis, {page 765): "If I
had all of my command and could keep it supplied with
provisions and forage, I would feel easy."

R E. Lee, May 7, 1863, to Davis, {page 782) : Calls
attention to insufficiency of his cavalry. His army
40,000; Hooker's, 120,000 men. Losses at Chancel-
lorsville heavy; always so where the inequality of num-
bers is so great. Recommends that troops be brought
from the South, where they have nothing to do and
will perish from disease and inaction. Bring Beaure-
gard with them and put him in command here.

R. E. Lee, May 20, 1863, to Davis, (page 810) : A. P.
Hill, I think upon the whole, is the best soldier of his
grade with me.
R. E. Lee, May 30, 1863, to Davis, (page 832): Re-
quests that the War Department take charge of D. H.
Hill's department of the Cape Fear and that he be
relieved of its supervision. D. H. Hill does not coop-
erate with him or obey him or return troops that belong
to the Army of Northern Virginia. These delays, he

46 SOME REMINISCENCES

fears, will leave him nothing to do but to retreat.
Fears that the time has passed when he can take the
offensive with advantage.

R. E. Lee, May 30, 1863, to Seddon, (page 834): Rec-
ommends that troops be brought from South Carolina,
Georgia, Florida, Cape Fear Department, and James
River. Asks to be relieved of command of Cape Fear
Department.

R. E. Lee, June 2, 1863, to Davis, (page 849) : Regrets
to lose Jenkins's and Ransom's brigades; good officers
and veteran troops. Comments on D. H. Hill's actions.

R. E. Lee, June 2, 1863, to Seddon, (page 849) : Further
comments on D. H. Hill's retaining his troops and at-
tempting to send inferior troops in their stead.

R. E. Lee, June 3, 1863, to Seddon, (page 851) : About
D. H. Hill's conduct and the best brigades retained
from the Army of Northern Virginia.

Series I, Vol. XXVU, Part III, Serial Number 40

GETTYSBURG.

R. E. Lee, June 3, 1863, to Gen. Sam Jones, (page 858) :
Even with this reduction I am deficient in general trans-
portation for quartermaster, etc., trains.

R. E. Lee, June 5, 1863, to Gen. A. P. Hill, (page 859) :
Third army corps in front of Fredericksburg, balance
of the army moving north.

R. E. Lee, June 8, 1863, to Seddon, Secretary of War,
(page 868): Writing of D. H. Hill. "He does not
seem to have projected much and has accomplished
less." Nothing to be gained by remaining on the de-
fensive. If the Department thinks it better to remain
on defensive it has only to inform me. Troops not
needed in the South. Sent to the armies in the field,
we might hope to make some impression on the enemy.

Note on the ivay to Gettysburg: Insufficient food, in-

SOME REMINISCENCES 47

sufficient transportation, insufficient cavalry. No
infantry reinforcements. Can't get his own troops from
Cape Fear Department. Troops rotting from inac-
tion in South. Heroically starts north, but on June 8th
at Culpeper Court House. Is uncertain if Department
will let him go.

Seddon, Secretary of War, June g, l86j, to Gen. Lee,
(page 874): Apologizes to General Lee and explains
that the disposition of the troops in North Carolina is
determined by Mr. Davis.

Gen. R. E. Lee, June g, i86j, to Davis, (page 874):
Culpeper Court House. Reports that the enemy's cav-
alry, infantry, and artillery have crossed the Rappahan-
nock in force. Prisoners from two corps captured.
Suggests orders to Cooke's brigade and Jenkins's bri-
gade to be sent to the Army of Northern Virginia.

President Davis, June Q, 1863, (page 874): Mr. Davis
refers General Lee's dispatch to Gen. D. H. Hill as to
Jenkins's and Cooke's brigades.

Saml. Cooper, A. A. G., June 10, 1863, to Gen. D. H.
Hill, (page 870): Informs Gen. D. H. Hill of Gen-
eral Lee's order as to Cooke's and Jenkins's brigades
and leaves it to Gen. D. H. Hill's discretion if General
Lee's order shall be carried out.

R. E. Lee, June 13, 1863, to Seddon, (page 886): "You
can realize the difficulty of operating in an offensive
movement with this army if it is to be divided to cover
Richmond. It seems to me useless to attempt it with
the force against it."

Saml. Cooper, A. A. G., June 15, 1863, to D. H. Hill,
{pages Sgo-Sgi) : Authorizes Hill to retain Jenkins's
brigade. Ransom's to Drewry's Bluff. Corse's Virginia
brigade drawn from General Lee's command at Cul-
peper.

R. E. Lee, June 16, 1863, to A. P. Hill: Informs him

48 SOME REMINISCENCES

that Anderson's division of his corps, Third, has reached
Culpeper Court House. Expects another division next
day,

Davis, June ig, 1863, to Lee, (page Q04J : Informs Gen-

eral Lee why a part of his army, "Pickett's division,

Q^ ^orse's brigade, has been detained. Jenkins's brigade

^ —deemed necessary by D. H. Hill to protect Petersburg."

Gen. A. G. Jenkins, June 20, 1863, to D. H. Hill, Mur-
fee's Depot, (p. go8). I beg as a personal favor that
you arrange to send my brigade to join General Lee. I
have sent scouts to Suffolk. No enemy, no gunboats.

Gen. G. E. Pickett, June 21, 1863, to A. A. G. Chilton,
(page 910) : Wants his scattered command sent to
him.

Gen. Lee, June 22, 1863, to Gen. J. E. B. Stuart, {page
913): Move with three brigades into Maryland.
(Two brigades can guard the Blue Ridge and take care
of your rear.) Take position on General Ewell's right.
Place yourself in communication with him. One col-
umn will move by Emmitsburg route, another by
Chambersburg.

Gen. Lee, June 23, 1863, to Gen. Stuart: I think you
had better withdraw on this side of the mountain to-
morrow night, camp at Shepherdstown the next day and
move over to Frederickstown. In either case, after
crossing the river you must move on and feel the right
of Ewell's troops, collecting information, provisions,
etc.

Gen. Lee, June 23, 1863, to Davis, (page 92^). Urges
withdrawal of troops from Carolina and Georgia under
Beauregard and part at least pushed forward to Cul-
peper Court House. His presence would give magni-
tude to even a small demonstration and tend greatly to
confound and perplex the enemy. Good results would
follow from sending forward under Beauregard such

SOME REMINISCENCES 49

troops about Richmond and North Carolina as could be
spared for a short time. The good effect of beginning
to assemble an army at Culpeper Court House would,
I think, soon become apparent, and the movement might
be increased in importance as the result might appear to
justify.

R. E. Lee to Saml. Cooper, A. A. G., June 23, {p. 925) :
Urges that Corse's brigade be sent to Pickett's division.
Not needed where it is, especially if the plan of as-
sembling an army under Beauregard at Culpeper C. H.
is adopted.

Gen. Lee to Davis, opposite Williamsport, June 25, 1863,
(p- 93) '■ "If the place I suggested the other day of or-
ganizing an army, even in effigy, under Beauregard at
Culpeper C. H. can be carried into effect, much relief
will be afforded. If even the brigades in Virginia and
North Carolina, which Generals D. H. Hill and Elzey
think cannot be spared, were ordered there at once and
General Beauregard were sent there, if he had to re-
turn to South Carolina, it would do more to protect
both States than anything else."

Gen. Lee to Davis, Williamsport, June 25, 1863: "It
seems to me that we cannot afford to keep our troops
awaiting possible movements of the enemy, but that
our true policy is, as far as we can, to employ our own
forces so as to give occupation to his, at points of our
selection. * * * j f^el sure, therefore, that the
best use that can be made of the troops in Carolina and
those in Virginia now guarding Richmond would be the
prompt assembling of the main body of them * * *
together with as many as can be drawn from the army
of Gen. Beauregard at Culpeper C. H. under the com-
mand of that officer. It should never be forgotten that
our concentration at any point compels that of the
enemy, and his numbers being limited, tends to relieve
all other threatened localities."
4

50 SOME REMINISCENCES

Page g46. — Abstract from the Department of North
Carolinaj Maj.-Gen. D. H. Hillj commanding, head-
quarters near Richmond, Virginia, June JO, 1863.
Permanent force: Clingman's brigade, Cooke's bri-
gade, Martin's brigade, Colquitt's brigade, Jenkins's bri-
gade. Ransom's brigade, unattached infantry; artillery;
cavalry. Officers, 1,308; aggregate present, 22,822; pieces
of field artillery, 104.

Major General Elzey's Command: Wise's brigade,
Corse's brigade of Pickett's division ; local troops, number
not given.

Mr. Davis's letter to General Lee of June 28, 1863,
giving reasons why he could not send General Beaure-
gard to Culpeper C. H. to make a diversion in his favor
ivas entrusted to a courier who was captured by Captain
Dahlgren of General Meade's staff, so that General
Meade had full knowledge that he had nothing to fear in
the direction of Washington. General Lee first learned
that his suggestions would not be entertained by reading
Mr. Davis's letter to him in the New York Herald and
the New York Tribune.

This ends Colonel Palmer's narrative. There
are several remarks to be made upon it. It Is posi-
tively sickening to see the contempt with which
General Lee's recommendations and suggestions
were treated. He, the Hercules of the undertak-
ing, without whom all of them would have been
kicked Into the James River In a jiffy, receives no
more consideration when he tells them what Is nec-
essary to do than If he had been a quartermaster's
clerk In some bomb-proof. He cannot even require

SOME REMINISCENCES 51

his subordinate, D. H. Hill, to send him his vet-
eran brigades which he needed so sadly in the crisis
at Gettysburg. His recommendations, so full of
wisdom and common sense, that the large force
scattered over the south should be concentrated at
Culpeper Court House to threaten Meade's rear
when he and Meade came to their death grapple
is treated as if it were the suggestion of an idle
school boy.

"Those whom the gods wish to destroy they
first make mad," and this seems to have been the
reason the Confederacy had its civil administra-
tion.

No wonder General Lee resigned the command
of his army when he got back from Gettysburg,
and no one without his sublime patriotism and he-
roism would ever have consented to withdraw his
resignation.

Gen. Robert E. Lee was, in my opinion, one of
the greatest, if not the very greatest, characters in
all history. The domination which he established
over the Army of Northern Virginia is as high a
tribute to him as could be paid. There were some
of the fiercest and most inflexible men in that army
that the world has ever seen. Stonewall Jackson,
Jubal A. Early, John B. Gordon, J. E. B. Stuart,
J. B. Hood were men who would stand erect in any
presence on earth and yet they all stood uncovered
in Lee's presence, and took the law from him as a

52 SOME REMINISCENCES

child takes It from his father. Stonewall Jackson
once said that General Lee was the only man in the
world that he would follow blindly, but that he
would follow Lee blindly wherever he chose to
lead. The whole army had exactly that feeling
toward General Lee. They all called him "Marse
Robert," and this expressed their feeling of devo-
tion toward him. None but the most extraordi-
nary man could have established such a mastery
over these inflexible men. It was General Lee's
domination of his army that made it the greatest
fighting machine the world ever saw.

In the year 1890 the magnificent equestrian
statue of General Lee was unveiled at Richmond.
There was an immense turnout of Confederate sol-
diers from all over the South. It was a day to be
remembered by all who saw it. Many members of
the old Third Virginia Cavalry attended, and they
formed themselves into an organization. Their
old colonel, Owens, was there, one of the most gal-
lant and splendid soldiers who ever drew a sword.
He was very poor and was unable to secure a horse
to ride at the head of his regiment. My dear
friend, Ned Minor, who belonged to the Third,
told me the state of the case. Another dear friend
of^ine, Willie Trigg, had lent me his horse, and
s6[l said to Minor, "What, Colonel Owens with-
out a horse on such an occasion as this! That shall
never be while Buck Royall has one." (My

SOME REMINISCENCES 53

friends have always called me "Buck.") "Take
my horse and convey him to Colonel Owens with
my compliments." He did i^and the dear old
colonel rode at the head of his regiment on that
proud day, one of the proudest men there. He
was unable to make me what he considered a fitting
acknowledgment of my service to him, but he had
just had a girl baby born and he went home and
named her "Buck Royall."

Speaking of General Robert E. Lee, in my opin-
ion there was never anything more preposterous
than the claim of Union zealots that General Lee
was a traitor because he cast in his lot with the
Southern people. It is well known that one of
their heroes, General George ^. Thomas, hesl-.
tated a long time whether he should not resign
from the Union Army and come South, and the
admirers of Admiral Farragut (and who is not an
admirer of him?) had better not press their in-
quiries too closely or they may find out the same
thing about him.

After our return from Gettysburg and while the
army was about Culpeper Court House, Colonel
Chambliss, of the Thirteenth Virginia, command-
ing our brigade, had me detailed as a scout because
of my knowledge of the country north of the Rap-
pahannock, to get information concerning the
enemy then occupying that territory. I remained

54 SOME REMINISCENCES

detailed for that service until March 20, 1864,
coming under the personal orders and direction of
General J. E. B. Stuart.

I had many thrilling adventures in my career as
a scout. On one occasion I had four men with me,
and we came to a house about half a mile from a
camp of three regiments of Federal cavalry in
lower Culpeper County where a party of eight men
from this camp were pillaging and plundering a
poor woman's premises. We waylaid these gen-
tlemen as they were leaving this house, and spring-
ing up we demanded their surrender. Six of them
surrendered, but two of them tried to run the
gauntlet. One of my men shot one of them dead
but the other one got away.

I knew of course this was going to bring an over-
whelming force down on me and that I had to dust.
I was mounted on one of the captured horses with
two of their Sharp's carbines taken from the enemy
swung around my shoulders. The prisoners were
walking, and one of my men, named Robert W.
Monroe, was on foot with them. The other three
of my men were some distance in the rear with the
captured horses. In turning a corner in some very
thick pines we came face to face with two mounted
Federal soldiers not twenty feet from us. I called
out at once to them, "Surrender!" Instead of
doing so the man on my side of the road coiri-
menced drawing his revolver. I raised one of my

SOME REMINISCENCES SS

carbines to my shoulder and with the start I had
in firing I ought to have shot him dead before he
got his revolver from the holster. But I retained
the reins in my left hand, and as soon as I slack-
ened the pressure on the bit my horse would
move forward and disturb my aim. This was re-
peated two or three times, by which time I had
lost my advantage over my adversary and I could
see down the barrel of his revolver pointed directly
at me. I saw I must fire or I was gone, and so I
pulled the trigger with the best aim I could get.
I made the luckiest of shots. I struck him at the
pit of his right arm and cut it almost off. His
cocked revolver fell from his hand. It was at full
cock and in another instant he would have fired.
The other man had his revolver in his boot, and
in endeavoring to draw it the lock hung in his
boot strap, and he was tugging away at it while the
battle was going on between me and his friend.
Monroe had run to him and seized his horse by
the bit, but he did not see Monroe, who had to
strike him a violent blow with his revolver to get
his attention ; but when that occurred he sung out
in fine style that he would surrender. He wore a
pair of long buckskin gloves that he presented to
me and they had printed across them the words
Augustus J. Mount of New Jersey. I would not
tell this but that Monroe is living to say whether
it Is true or not. A letter addressed to him at Gold-

56 SOME REMINISCENCES

vein, Fauquier County, Virginia, will receive im-
mediate attention. I suspect if Mr. Mount is alive
he, too, has a rather lively recollection of the inci-
dent.

We left the wounded man on the side of the
road, knowing full well that his friends would soon
be there. I was told afterward that he died. He
was as game a chap as I ever encountered.

I took my prisoners to Richmond and lodged
them in Libby Prison. At that time General
Meade's army was lying about Culpeper Court
House. The territory around Fredericksburg was
neutral, sometimes occupied by the scouting parties
of one side, sometimes by the other. About seven
or eight miles from Fredericksburg there was a
place called Hamilton's Crossing, to which, as I
knew, the railroad daily sent a train of long box-
cars. I took my prisoners to Hamilton's Crossing
to put them on this train. When I got there I
found Judge R. C. L. Moncure, the President of
the Supreme Court of Appeals of Virginia, a po-
sition that corresponds to chief justice in the other
States. He is since dead, leaving a saintly name
as a man and a judge. The old gentleman's home
was in the lower end of Stafford County, near
Fredericksburg, though his family was with him in
Richmond. He had been to his home to kill and
slaughter a young steer that he had there and carry
it to Richmond for his family. I knew the old

SOME REMINISCENCES 57

gentleman well and we greeted each other most
cordially. The conductor gave me one of the long
box-cars to put my prisoners in, and locked the
Judge and myself in it with the prisoners. It was
just at nightfall when the train started for Rich-
mond, and it took us all night to get there. I had
on me two large army revolvers and I gave the
old Judge one of these. I put the prisoners at one
end of the car and the Judge and I sat on the floor
at the other end. It was pitch dark in the car. I
notified the prisoners that if I heard any movement
amongst them I should commence firing on them
and continue firing while the movement lasted, so
that there was perfect quiet there during the night.
The old Judge sat bolt upright all night guarding
the prisoners, while I laid down and had a good
night's sleep. We have often laughed together
since over how I made him sit up all night and
guard my prisoners while I enjoyed a refreshing
sleep.

I want to make it known that I did my duty as a
Confederate soldier, and so I state the following.
In 1896 I applied for membership in George E.
Pickett Camp of Confederate Veterans at Rich-
mond. The commander told me I must furnish
references to prove my standing as a soldier. I
replied that a private soldier should always refer
to his captain for testimony as to his standing, and
that my last captain, — two having been killed, —

58 SOME REMINISCENCES

E. M. Henry, lived at Norfolk, Virginia. He
wrote to him and received the following reply,
which is on file in Pickett Camp in Richmond :

Norfolk, Virginia, April g, i8g6.
Col. R. N. Northern, Commander Pickett Camp C. V.

Dear Colonel : Yours of the 7th Inst, received, and in
reply would state that it gives me great pleasure to testify
to the good standing and soldierly qualities of Mr. W.
L. Royall during the war. He was a member of my
Company A, Ninth Virginia Cavalry, Beale's brigade.
He was a brave and gallant trooper, bold and daring, and
served for the last two years of the war as a scout, de-
tailed for that purpose, and rendered valuable service in
gaining information as to the enemy's movements by his
daring and risk of life.

Your Comrade, E. M. Henry,
Capt. Co. A, Ninth Virginia Cavalry.

I would not exchange that certificate for Mr.
Rockefeller's fortune.

On March 20, 1864, I got into a brush with
some Federal cavalry and was shot through the
left hand and taken prisoner. The headquarters
of the command, which was the Second New York
Cavalry and the Eighteenth Pennsylvania Cavalry,
under the command of Lieutenant Colonel Tim-
othy O'Brien, were at "The Grove," in the lower
end of Fauquier County, Virginia, where these two
regiments had been for several weeks.

At "The Grove" there were two churches and

SOME REMINISCENCES 59

nothing else; one was a Presbyterian church on the
north side of the pubHc road, the other, a Baptist
church, on the south side. My mother's home was
distant only two miles from "The Grove." My
father, a Presbyterian minister, had built the
Presbyterian church at "The Grove," and he
preached in it for twenty years. He was buried at
the back of the church.

The officer in charge of the party that had
captured me was a lieutenant in the Second New
York Cavalry. He had frequently ridden over to
my mother's house and had made the acquaintance
of the family. They treated him courteously and
politely, and he had promised my mother that if
I ever fell into his hands he would see that I was
properly treated. When we got to "The Grove"
I was put into the Baptist church. After a while
I was sent for and taken over to the Presbyterian
church. When I entered I saw a table around
which were seated some five or six officers with a
Bible on the table. I had had sufficient acquaint-
ance with military matters to know that a drum-
head court martial in the field is usually nothing
but a stepping-stone to the gallows, and this looked
to me prodigiously like a drumhead court martial.
I was ordered to be seated, and then Colonel
O'Brien read an order which he seemed to have
that day received from General Kilpatrick. It was
about like this;

6o SOME REMINISCENCES

Colonel O'Brien:

The first bushwhacker you catch, you will try by
court martial and have hung.

General Kilpatrick.

Colonel O'Brien told me I was about to be tried
by court martial on the charge of being a bush-
whacker. The situation was about as terrible as a
boy of nineteen could be confronted with. For a
time I was dazed and could say nothing. But by
degrees I recovered possession of my faculties, and
was soon pleading my cause more earnestly than
I have ever since pleaded one. I had General
Stuart's orders in my pocket detailing me from my
regiment and ordering me upon the very service I
had been engaged in, and I made the most of that.
Finally I was sent out. In the course of an hour
Colonel O'Brien came to me and told me the court
had acquitted me. I doubt if in all my career my
life has been in as much danger as it was that day.

After the trial I was put into an ambulance to
be carried to General Meade's headquarters at
Brandy Station, Culpeper County. My friend, the
second lieutenant of the Second New York Cavalry,
who had been on the court martial, came to the
ambulance with some loaves of bread for me. I
asked him how it was I escaped. He told me he
had promised my mother to look out for me if I
ever fell in his hands and that he had just taken
the stand in the court that I should not be hung

SOME REMINISCENCES 6i

and had finally brought a majority of the officers
over to his side. When I got to General Meade's
headquarters I was put into the "bull pen." This
was a circular stockade made of split poles set into
the ground and about fifteen or eighteen feet high,
with no covering for it but the heavens. It was
bitterly cold, and the snow fell that night a foot
deep. When I entered the "bull pen," which was
filled with Federal deserters, Confederate deserters,
Confederate prisoners of war and civilian prisoners,
perhaps fifty in number all told, to my amazement
I found amongst them my little brother Taylor,
twelve years of age. Some wretched raiders had
torn him from my mother's arms and had brought
him there. My mother was only able to throw an
old shawl around him, which she had pinned at the
neck. The poor little fellow was shivering with
cold when I found him. There was a small open
fire in the middle of the pen that every one was
struggling to get near. I struggled with the rest,
to get Taylor to the fire, but with my wounded
hand I was not in good shape for the struggle.
That night we had to lie upon the ground to get
what sleep we did get. I had a heavy army over-
coat and I took the child in my arms, wrapping
his shawl and my overcoat around us as best I
could, and there we lay through all that dreadful
night.

Next day I was taken out of the "bull pen" and

62 SOME REMINISCENCES

sent to the Old Capitol Prison in Washington. I
never saw Taylor again. The exposure was too
much for him. His throat was weak and had been
operated on. In a short time he was taken out of
the "bull pen" and sent to Alexandria, and there,
in the common jail, he died, without a face near
him that he had ever looked on before.

I was kept in the Old Capitol Prison until about
the middle of June, when I was sent around by
sea to Fort Delaware, which is situated upon a
small island about forty miles from Philadelphia,
where the Delaware River debouches into the
Delaware Bay. The river is about four miles wide
at this point and the island is in about the middle
of the river. There were some eight thousand
Confederate prisoners on this island during the
year I stayed there. They were kept in barracks
made by planking up frames of scantling. These
barracks were very open, and there was only one
stove to a barrack containing 400 men, called a
division. The stove was practically useless for
heating the barrack, and the weather was intensely
cold there in the winter. I have seen the Delaware
River frozen over so fast and tight that an army
with all its artillery and trains could pass over on
the ice.

When I had been there a short time, Hon.
Theodore F. Randolph, afterward Governor of
New Jersey and United States Senator from New

SOME REMINISCENCES 6^

Jersey, who had married a relative of mine, found
out I was at Fort Delaware and from that time on,
until I was released from prison in June, 1865, he
supplied me with $25 every six weeks. Two mem-
bers of my company were in prison with me and I
shared this money with them. It was most ma-
terial in keeping us alive.

The treatment we received at Fort Delaware is
an everlasting disgrace to the Government of the
United States of that period. Much has been said
of the bad treatment of Union soldiers held
prisoners by the Confederacy but it is well known
that the Confederates were anxious to exchange
prisoners and that the Union prisoners fared as
well as the Confederate soldiers In the field. The
Confederates did as well as they could do, but
there was no excuse for the Union Government
not giving us all the food and warmth that was
necessary for they had an abundance of everything.
We were starved and frozen; we had but two
meals a day. Breakfast consisted of a piece of
loaf bread about the size of a man's clenched fist
and a little piece of salt pork or beef about an
inch thick. We had no coffee. Dinner consisted
of the same. This was not food enough to keep a
man from being perpetually hungry and no one
can imagine the pangs of perpetual hunger who
has not endured them.

A piece of wanton cruelty was inflicted upon us

64 SOME REMINISCENCES

in the matter of blankets. No prisoner was al-
lowed to have more than one blanket, never mind
how he might have come in possession of the excess.
Once in every two weeks the whole prison was
turned out and each man was searched and all blan-
kets in excess of one to the man were confiscated.
I used to buy blankets in between these searches,
for myself and my two comrades, but they were in-
variably taken away from us and we had to sleep
in that awful cold on bare planks with little or no
covering. Our sufferings were intense.

CHAPTER II

EVENTS IN RICHMOND DUELLING

In June, 1865, I returned to my mother's home
to find the family, consisting of my mother, my
grandmother, my aunt, my elder, but incapacitated
brother, my sister and her husband and four chil-
dren and my unmarried sister, existing, but that
was all, on the place. The negroes were all gone,
the Federal army had taken from them every ani-
mal and how they had managed to exist I could
not understand. I went to work as a common
laborer on the farm and labored there two years,
by which time I had pulled the place up so that
my mother and her family could get a very good
living out of it.

My mother had some money at interest before
the war, and getting that in, she gave me $2,000
and started me out in the world to make my future,
whether good or bad.

I came to Richmond, January i, 1868, and
read law with William Green, Esq., the most pro-
found and learned lawyer that I have ever known
anything of. His argument in the case of Moon
vs. Stone in 19th Grattan has been referred to by
the judges in Westminster Hall.*

* Mr. Green was not only a most learned lawyer, but he had
picked up a vast deal of miscellaneous information from books,
5

66 SOME REMINISCENCES

At the end of a year's study I was licensed to
practice law, and I hung out my shingle in the city
of Richmond. The society of Richmond was at
that time most delightful as it is to this day. The
young ladles were many of them very beautiful and
of the most fascinating manners. They had just

and when once he learned a thing in reading it stuck in his mind
like a burr. Like all very learned men he always had a "wise
saw and modern instance" for every case, and the thing that
interested him whenever any subject came up for discussion was
the appropriateness of the citation he was going to make for that
case.

For two or three years after the close of the war Chief Jus-
tice Salmon P. Chase came to Richmond regularly to hold the
United States Circuit Court. On one of these occasions Mr.
James Lyons, an eminent member of the Richmond bar, gave
Judge Chase a dinner to which Mr. Green was invited. During
dinner Judge Chase told an anecdote about Mr. Lincoln. He
said that soon after the Monitor and the Merrimac had their
bout in Hampton Roads, the Secretary of the Navy invited Mr.
Lincoln, himself, and two or three other members of the Cabinet
to take a little jaunt on a government steamer down the Po-
tomac. Between Washington and Alexandria they came to a
place where a cordon of logs and other obstructions extended
from either shore to the channel, leaving just enough space for
a good sized steamer to pass through. Mr. Lincoln asked the
Secretary of the Navy what that was meant for. "Oh," replied
he, "that has been constructed here to stop the Merrimac in case
she should get up here." "Well," said Mr. Lincoln, "that re-
minds me of an anecdote. Once I was riding through my dis-
trict in Illinois accompanied by a friend or two, and we came
to a stream where several naked men were bathing. I said to
one of my friends, 'I wonder why men were given udders.' 'Oh,'
said he, 'it was to suckle babies in case they had any.' " Well,
every one was on the go to laugh at the great man's joke and
the laugh had got well under way, when Mr. Green cut
in with, "Well, Mr. Chief Justice, Dr. Haxall there will tell
you that there have been known cases where men have suckled
infants."

SOME REMINISCENCES 67

emerged from the war, during which they had been
constantly thrown with the most gallant and attrac-
tiv^e men in the Confederate Army, and they had
thus acquired an aplomb and a savoir faire ex-
celling by far that of any set of young women that
\ have ever been thrown with. Amongst the men
were to be found the choice spirits of the Confeder-
ate Army. There were youngsters who had won
the stars of a colonel on the battlefield, when
under twenty-one. All of the young men had
served throughout the war in the ranks or with
commissions, and this made a camaraderie amongst
them that never existed anywhere else on the earth.

Into this delightful society I had free access,
and that access left upon me a deep scar which I
bore for a long time,

I was an awkward, gawky youth, some twenty-
three years of age when I arrived in Richmond.
My clothes were of the cut of the countryman and
my ways and manners very much the same. There
dwelt then in Richmond a young girl of nineteen,
who was more beautiful and fascinating than Cleo-
patra was ever thought to be by either Caesar or
Mark Antony. Her initials were M. R. Her
eyes were of the deepest blue, her voice was softer
and more tender than any strain in Tannhauser's
Song to the Evening Star, and she had a soft poise
and balance that captivated any man who fell
under her influence the moment he heard her speak

68 SOME REMINISCENCES

a word. After arriving in Richmond I soon made
the acquaintance of this fairy, and of course at
once fell madly in love with her. Everybody knew
how madly I was in love with her and everybody
said, "Vv'^hat a fool that green young man Royall
is to dare aspire to the hand of Miss M. R." She
was courted by all the best men in the land. But
that did not restrain me. All my life I have dared
to aspire to whatever I want, and obstacles have
only quickened my desires. I went on loving this
fascinating creature and working out schemes deep
down in my inner self for winning her. I soon
declared my love to her, and was of course told
that she could not think of me. Did that moder-
ate my ardor? Well, I should think not. It simply
increased it. I made that girl's life a burden to
her. I asked myself always, "Why am I not as
worthy of her as any other? No man can love
her as I do. I shall win her." I persisted day in
day out, month in month out, year in year out,
and after a while I saw I was gaining a foothold.
We had quarrel after quarrel, and for days
and sometimes weeks yft would not speak. But
I saw she was yielding, and when I was alone I
was ready to dash my head against the wall in
recognition of the thought. In the end she yielded
and admitted that she cared for me. No man can
imagine what ecstasy I enjoyed while we were en-
gaged. But clouds arose upon our horizon and

SOME REMINISCENCES 69

I can never forget that day we parted. I was
a wounded man from the hour the separation oc-
curred.

She was at a Virginia mountain resort that sum-
mer, and I, like a fool, went there. She was chap-
eroned by her friend, Mrs. T. D. A talented and
charming old widow named Mrs. R. S. sat at their
table with them. One night my friend E. F. told
me Mrs. R. S. was going to seat a gentleman
named R. J., who had arrived that day, at their
table, and that Mrs. T. D. objected very much to
his being placed there. I knew all about R. J.
He was a little dissipated, but he was a gentleman
and had served through the war with great gal-
lantry as a Confederate soldier. I knew that what
was in my mind would probably cause him to chal-
lenge me to a deadly duel, but that did not amount
to a moment's consideration with me. The only
thing that counted with me was the fact that Mrs.
T. D. objected to his being at h^r table and that
no doubt Miss M. R. shared in the objection. My
life was of no moment where Miss M. R.'s wishes
were involved. I at once said to E. P., "Mrs. T.
D. is my relative, and if she does not want that
gentleman at her table, he shall not be put there."
I then went up on the long porch where I knew
Mrs. R. S. was in conversation with R. J. I called
her to one side and asked her if it was true she pro-
posed to put R. J. at Mrs. T. D.'s table. She

70 SOME REMINISCENCES

said it was. "Then," said I, "you must not do it."
In great surprise she asked why. I replied, "Be-
cause I do not wish it and will not allow it," She
said she would put him there anyway. I replied
that if she did it would become my disagreeable
duty to tal<:e himi away. She did not put him at
the table, and I did not have the duel that I ex-
pected to result. I merely mention this incident,
very disreputable to me, I admit, to show how
deeply and desperately I loved that girl. As I
have said, we separated, and she married a man
who lived in New York. Though I had not
spoken to her in two years, she wrote me a sweet
note inviting me to her wedding. I did not go,
but I went that night to a faro bank, where I lost
all the money I had about me and also a handsome
overcoat that had cost me $75, a sum to be taken
notice of by us young rebels. I was heart-broken
and became dissipated and lost ten of the most
valuable years of my life. But in time I became
my former self and married my present wife. Miss
Judith Page Aylett, a great-granddaughter of
Patrick Henry, who has made ample compensation
to me for all that I lost.

One incident of the year 1873 in which I played
a leading part made a great noise at the time.
Miss Mary Triplett, one of the most beautiful
women ever created by the Almighty, was at that

SOME REMINISCENCES 71

time a reigning belle in Richmond. Page Mc-
Carty, an attractive, devil-may-care sort of fellow,
who then lived there, fell desperately in love with
her, and it was generally understood that they had
become engaged to be married. All at once Miss
Mary broke off with him and went to Europe,
where she stayed possibly a year. When she re-
turned she would not speak to McCarty and would
never afterward have anything to do with him.
We had a german club that met once in two weeks.
The club was usually led by a reckless, bright,
audacious fellow named Sprigg Campbell. At one
of their meetings Campbell contrived a figure that
would throw McCarty and Miss Triplett together
for a dance. It was a wanton act intended
for cleverness. They met, commenced to dance,
but after a turn or two. Miss Triplett disengaged
herself and walked to her seat. Every one knew
that she intended it as a slur on McCarty. It
threw him into a desperate rage. He spoke of it
to me after the german, and I have never seen a
man more wrought up than he was.

Amongst the young men of Richmond at that
time was one named John B. Mordecai. He was
six feet two, about thirty-three years of age, and
one of the handsomest men I have ever seen. He
had served gallantly through the war as a private
soldier in the Richmond Howitzers, was a fellow
of the most delightful wit, and take him all in all.

72 SOME REMINISCENCES

I think he was about the most charming companion
I have ever known. Handsome, gallant, chival-
rous, affectionate, and witty, I have never seen his
like. He, too, was desperately in love with Miss
Triplett.

The night of the german and after It was over
McCarty went to the Enquirer newspaper and
offered them the following verses which the paper
published next morning :

"When Mary's queenly form I press

In Strauss' latest waltz,
I would as well her lips caress

Although those lips be false.

"For still with fire love tips his dart,

And kindles up anew
The flames which once consumed my heart

When those dear lips were true.

"Of form so fair, of faith so faint,

If truth were only in her;
Though she'd be then the sweetest saint,

I'd still feel like a sinner."

I was a bachelor then and took my meals usually
at Gerots' restaurant. The next morning after
the german, I was in Gerots' getting my breakfast,
and had just read these verses in the Enquirer when
John Mordecai came in. He took up the paper
and his eyes fell on the verses. He understood
the whole situation at once, and I saw his face get

SOME REMINISCENCES 73

as black as midnight. Laying down the paper he
said, perceiving that I understood the case, "I shall
kill that fellow."

I remonstrated with him, telling him it was a
matter that he had no right to interfere with; that
Miss Triplett had a grown brother who would do
whatever was proper to be done in such a case,
and that he did not know whether she or her family
wanted anything done. He would not be quieted,
however, but went off to our mutual and very dear
friend, Willie Trigg, to consult with him. Trigg
told him exactly what I had told him, and between
us we got him to promise to let McCarty alone.

That night I met him at the Richmond Club,
and being seated together on a sofa he proceeded
to denounce McCarty in the most unmeasured
terms. A relative of McCarty overheard him and
reported the denunciation to McCarty. At that
time duelling was dying in Virginia, but it was very
far from dead. McCarty sent a friend to Morde-
cai demanding a retraction and apology, which
Mordecai refused to make. I knew that McCarty
said he had not written the verses about Miss Trip-
lett, but about another lady named Mary, and I
intervened as a friend, and got the matter patched
up upon the basis of the verses having been written
about another person. Thereupon the matter was
supposed to be closed.

But there were gossips in Richmond, and one.

/

74 SOME REMINISCENCES

a singularly beautiful and Intelligent girl, made her
tongue busy with insinuations that McCarty had
backed out because he was afraid. These things
came to McCarty's ear and put him in a terrible
fury.

A short time afterward Mordecai entered the
barroom of the Richmond Club where McCarty
and Charley Hatcher were. Mordecai ordered a
drink, and while it was being prepared McCarty
walked up and down the floor right by Mordecai,
making reference to the affair and making threats
of what he would do the next time he got a chance.
Presently Mordecai walked up to him and said,
"Do you mean those remarks for me?" McCarty
replied in the most insulting manner, "And who
are you, sir?" Mordecai answered, "I am a gentle-
man, at least." McCarty said as offensively as
possible, "Ahl" and Mordecai Instantly struck him
a powerful blow In the face which cut all the skin
from over his left eye and felled him to the floor.
Mordecai then jumped on him, seizing both his
wrists, and had him pinned to the floor, when I,
hearing the noise, rushed In and separated them.

McCarty at once sent Mordecai a peremptory
challenge by Col. Wm. B. Tabb, and it was agreed
that the duel should come oft" at once near Oak-
wood, McCarty to be represented by Colonel Tabb
and John S. Meredith; Mordecai, by myself and
Willie Trigg. The terms were that they were to

SOME REMINISCENCES 75

fire at ten paces. The command would be, "Fire —
one, two, three." They could fire at any time
after the word "fire," but not after the word
"three." The weapons to be used were Colt's
army revolvers, all six chambers loaded.

We placed the men, the word was given, both
men fired, and both missed. Tabb said to Mc-
Carty, "Are you satisfied?" McCarty replied,
"Oh, no. I demand another fire." I have quoted
everything exactly. Again the word was given,
both men fired and both fell. McCarty was
badly wounded by a shot in the hip, Mordecai had
been struck near the navel, the ball penetrating
the intestines. He died on the fourth day after the
duel. McCarty lingered a long time but finally
recovered, and in a trial was fined $500 and sent
to jail for six months. The Governor remitted the
jail sentence on the doctor's certificate that it
would endanger his life.

This was the famous duel between Mordecai
and McCarty. There were several duels after this,
but none of them fatal, and the duel in Virginia
is now as dead as Chatham's ghost. I think
Mordecai was one of the knightliest gentlemen that
ever lived on this earth. He was shot on Friday,
but did not die until Tuesday. Monday night
peritonitis set in and all of Tuesday it was known
he must die and he knew it too. They urged that
he should send for a minister of the Gospel, but he

76 SOME REMINISCENCES

replied, "No, I shall die as I have lived," and he
never uttered a whimper. An hour before his end-
ing he sent for me. Putting his arms around my
neck he pulled my ear down to his mouth and
whispered, "Remember, Royall, what I told you."
I answered, "I certainly shall, John." It was a
message to his sweetheart.

As I was much mixed up in duels while they
lasted, although bitterly opposed to them on prin-
ciple and detesting the very mention of them, I
shall detail here all that I propose to say of them.

In 1 86 1 Bradley T. Johnson was a handsome,
stylish-looking lawyer of about thirty-three. He
lived at Frederick, Maryland, where he had at
that time acquired much reputation as a lawyer
and public man. He was an ardent secessionist
on principle and believed that the time had come
for the South to secede from the Union. When
the Confederate Government was established at
Richmond, he went there as captain of a company
of infantry which he brought from Frederick. In
a short time the Maryland companies were all con-
solidated into the First Maryland Infantry, and
Johnson became its colonel.

There was no more daring and gallant soldier
in the Confederate Army than Johnson. His
regiment was with Stonewall Jackson in that re-
nowned campaign of his in the Valley of Virginia
in 1862, and it contributed most materially to win-

SOME REMINISCENCES 77

ning Jackson's prodigious reputation. Jackson,
who knew a soldier the moment he laid eyes on
him, was continually writing Jeff Davis and the
Secretary of War, urging that Johnson should be
promoted to brigadier-general, but Mr. Davis,
hide-bound to one of his pet theories, always
answered there was no Maryland brigade for him,
as if we were not to have the services of the most
useful man in the army if there was no command
from his State.

When the second battle of Manassas was
fought in the fall of 1862 the enlistment of the
Maryland regiment had expired. They were
disbanded, and Johnson was without a commission
and without a command. He was riding at that
time with Stonewall Jackson as a sort of volunteer
aide. One of Jackson's Virginia brigades was
without a brigadier and Jackson told Johnson he
must take command of it. Johnson told Jackson
he had no commission. Jackson replied that made
no difference; that he was well known in the army
as a colonel and wore the uniform of a colonel, and
that if he went to brigade headquarters with his,
Jackson's, order to take command of it, everybody
would submit to his orders, and so the case proved
to be. Though without a commission, Johnson
made one of the greatest fights at the railroad cut
with that Virginia brigade that was ever made in
war.

78 SOME REMINISCENCES

At one time, after he had repulsed one of the
several attacks and his ammunition was almost ex-
hausted, he detailed all of the orderly sergeants to
go out on the field and get all the cartridges on the
dead Federals. While the orderly sergeants were
all in a group dividing this ammunition a shell
burst amongst them and prostrated the whole
crowd. This of course produced a very demoraliz-
ing effect on the brigade, which was under a heavy
artillery fire, and Johnson, calling the men to atten-
tion, put the brigade through the manual of arms
as though it had been at a holiday picnic*

Johnson came back into the service, and finally
his splendid services compelled the administration
to make him a brigadier-general, with which rank
he served to the end. He settled at Richmond
when peace came to practice law, and he had very
great success from the beginning. By 1873 he

*Johnson told me the following incident of the first battle of
Manassas. He was then major of the First Maryland Infantry.
His regiment was part of the force which Joseph E. Johnston
brought from the Valley in time to take part in the battle. Col.
Arnold Elzey commanded a regiment that day in Gen. E. Kirby
Smith's brigade, and he was senior colonel and would be briga-
dier-general if an3'thing happened to Smith. He was very ambi-
tious, and was heard to mutter when buckling on his sword that
morning, "Six feet of ground or a yellow sash to-day."

Johnson's regiment was double-quicked from the depot to the
battlefield, and when Johnson got there his tongue was hanging
out. He went up to Elzey, who was also from Maryland, and
asked him if he could not in some way get him a horse. Just
then the enemy fired a volley and Smith fell off of his horse
badlv wounded. "There," said Elzey, "God is just. Go and
get Smith's horse."

SOME REMINISCENCES 79

was a man of very Independent means, and in that
year he offered me a partnership, which I very
gladly accepted. We were as intimate friends up
to the day of his death as ever lived. No two
brothers could have been closer, and I loved him
tenderly and sincerely.

William Mahone was born in Virginia in one
of the counties south of the James River, between
Petersburg and Norfolk. He received a military
education at the Virginia Military Institute, and
this enabled him to get the command of a Virginia
regiment of infantry at the beginning of the civil
war. He was very soon given a brigade of five
Virginia regiments, so that it may be said that he
commenced the war as a brigadier-general. His
brigade was one of the finest in the Confederate
Army, and it did some of the most heroic fighting
that was seen during the war. Mahone was a
splendid organizer and looked after his men with
the most careful attention, so that the brigade was
always in first-class condition. The senior colonel
in the brigade was D. H. Weisiger, who became
brigadier-general commanding the brigade when
Mahone was made major-general, Weisiger com-
manded the brigade In almost every engagement it
was in. He has frequently told me that he never
saw Mahone under fire and that he never com-
manded the brigade In a single action.

8o SOME REMINISCENCES

In July, 1864, General Grant blew up a part
of General Lee's lines in front of Petersburg with
a mine that he exploded. Lee had known of this
mine for some time, and had concentrated an artil-
lery fire on the point that made it simply impossible
for any troops to come through the gap made in
the lines until he was able to reinforce the point.
Two brigades of Mahone's division, the Virginia
brigade and the Georgia brigade, were brought up
by a covered way to retake the position then occu-
pied by a large force of Union troops. Mahone's
brigade, under Weisiger, marched out of the cov-
ered way, leaving Mahone in it, formed in line
some hundred yards from the point of attack, and
charged the enemy occupying our lines. It was a
heroic act and was perfectly successful. Just as
poor old Weisiger had got possession of our lines
and of everything in them, he was shot through the
body. He was carried back to the covered way
to where Mahone was. Weisiger gave me this
account of what occurred. Mahone said, "Weisi-
ger, why in the hell are you and old Joe Johnston
always getting yourselves shot?" Weisiger said
he thought it was all over with him, and he was
therefore a little indifferent about insubordination,
and so he answered, "General Mahone, if you
would go where General Johnston and I go, you
would get shot sometimes, too."

Possibly I am not doing Mahone justice In this

SOME REMINISCENCES 8i

sketch of him, because I hated him and he is the
only man I ever hated. For a number of years
he was engaged in a deliberate attempt to dishonor
my native State by forcing a repudiation of her
public debt, and in the contest which grew out of
that attempt I came to hate him. My feeling
toward him may be judged of by the following in-
cident.

In some way or another, all at once, a marble
bust of Mahone appeared in the State Public Li-
brary amongst her dignitaries and honored sons.
Everybody resented it, and I made a diligent effort
to find out by what authority it was put there ; but
always found that whenever I got to the critical
point and was just about to find out something
that would count, all sources of information sud-
denly closed up and I could get absolutely nothing.
In one of the suits about our public debt which I
carried to the Supreme Court of the United States
(a full account of this whole matter will be given
later on), the Supreme Court reversed the judg-
ment of the Hustings Court of the city of Rich-
mond and gave me costs against the State, amount-
ing to something like $i 20. I applied to the Hus-
tings Court of the city of Richmond for an execu-
tion against the State and it was given to me, and
I instructed the officers to go into the Public Li-
brary and le\^ the execution on Mahone's bust and
nothing else. I intended to buy it at the sale, and

82 SOME REMINISCENCES

then publicly smash it into small fragments on
the public square. The officer went into the
Capitol building to do as I had directed, but Fitz-
hugh Lee, who was then Governor, hearing of
the affair, had the officer forcibly ejected from the
building, and he refused to make any other levy
and so I failed to get Mahone's bust and lost my
costs also. We will go on now with Mahone.

He was as vain, conceited, and egotistical a
little chap as ever had anything to do with Vir-
ginia's affairs. At the end of the war he had a
very considerable military reputation, but some sol-
diers said it was a reputation made for him by
the newspapers. It has always been persistently
claimed that he kept a newspaper correspondent
hanging about his headquarters to write him up
upon all occasions. However that may be, the
following are undoubted and, in the main, recorded
facts.

In June, 1870, there appeared in the Historical
Magazine, of New York, a monthly of great in-
fluence and importance, an article entitled, "A Mil-
itary Memoir of William Mahone, Major-General
in the Confederate Army," by Gen. J. Watts De
Peyster. The article stated that it had been sub-
mitted to General Mahone before publication, and
that it was approved of by him. The article was,
perhaps, one of the most fulsome that was ever ap-
proved by any man. It said that Mahone was a

SOME REMINISCENCES 83

better soldier than Eongstreet, and the equal, and
in some respects the superior, of Stonewall Jackson.
All this would have passed with nothing but the
contempt of judicious men if it had been all. But
it was not all. The article went on to disparage
some other soldiers, and Gen. Jubal A. Early
amongst them. I knew General Early very inti-
mately, and if Mahone had asked my opinion be-
fore he published his article I should have told
him to be careful about what he said of him.
General Early was a rugged character, but one of
the loftiest, sincerest, and most loyal men that ever
lived, and the last man in the world to submit to
an injustice. Accordingly, when he learned of this
article he wrote Mahone a note calling his atten-
tion to the unjust references to himself, and Ma-
hone, being then in the pride and plenitude of a
power that I will explain further on, treated
Early's note in the most cavalier manner, and made
no answer at all. Thereupon General Early
wrote him a twenty-page letter reviewing his whole
career in the war and out of the war. It was such
a letter as no one man ever received and submitted
to in the history of the world. In those days of
duelling it meant a fight.

Well, Mahone had no stomach for a fight, and
so he got a number of the most prominent people
in the State to intervene. Gen. Bradley T. Johnson
amongst them, and the matter was adjusted upon

84 SOME REMINISCENCES

the basis that Mahone should have the article re-
published in the Historical Magazine with all the
offensive references to General Early omitted, and
this was done. It was the general understanding
at the time that the republication cost Mahone
$10,000.

When the war ended, Mahone, by reason of
his newspaper military reputation and the wide
acquaintance with men that his high position had
made for him, had a large following, and he was
ambitious and eager to use such position as he had
made for himself for all that could be made out
of it. There was a railroad that had been built
before the war from Norfolk to Petersburg, called
the Norfolk and Petersburg Railroad. There
was another called The Southside Railroad that
ran from Petersburg to Lynchburg, and another.
The Virginia and Tennessee, that ran from Lynch-
burg, Virginia, to Bristol, Tennessee. Now these
roads made a continuous line of more than four
hundred miles. The State of Virginia owed a
large public debt, and the money that she owed
had been borrowed to contribute to the building of
the various railroads in the State. In this way she
owned the controlling voice in the three railroads
named. Directly after the war Mahone set him-
self to work to control the Legislature of the State.
He got control of it and induced it to consolidate
the three roads named into one road, The Atlan-

SOME REMINISCENCES 85

tic, Mississippi and Ohio. The State voted him
president of the new road with a salary of $25,000
a year. Thereupon Mahone became a very great
power in the State and aspired to its absokite con-
trol.

Along in 1874-75, Gen. Bradley T. Johnson
having acquired a competence in the practice of
law, desired to go into public life, and he com-
menced by going into the council of the city of
Richmond. Mahone knew instinctively that John-
son in public life meant danger to him, Mahone.
When the election for the City Council was to come
off, Mahone, who lived in Petersburg, came over
to Richmond and installed himself in the Rich-
mond Whig building (the Whig newspaper being
generally understood to be owned by him), and
Johnson believed that he had done it with the in-
tention of interfering with his election. Accord-
ingly, Johnson scattered a circular all over the city
informing the people of the facts as he believed
them to be, and urging the people to turn out and
vote down this interference with their affairs.
Mahone, thereupon, enclosed one of these circulars
to Johnson and asked him if he was its author.
Johnson replied that he was. Mahone answered,
denouncing it as a malicious falsehood, and, of
course, in those days that meant a duel.

Johnson and I conferred over the matter, and
Johnson said he would challenge Mahone to a duel.

86 SOME REMINISCENCES

He said Col. R. Snowden Andrews was the most
distinguished Maryland soldier then alive, and
that he wanted him to act as his second. But An-
drews was away from Richmond and he feared
Mahone might make some publication of the affair
before he could get him here. It was therefore
agreed between us that I should take a note to Ma-
hone Informing him that Andrews was telegraphed
for and that as soon as he arrived a hostile note
would be sent him. I took this note to the Whig
building and delivered it to Mahone, and this was
the one solitary interview that I ever had with him,
though our lives touched at many points from that
time on to the time of his death. The Virginia
Constitution disqualified any one to hold office who
took part In a duel. As Johnson was going into
politics he did not want to send a challenge and
thus disqualify himself If there was to be no duel,
so Andrews arranged with Mahone that all parties
would meet at Weldon, North Carolina, at a given
time, and that he would there give the final chal-
lenge when nothing could Interrupt the duel.
Johnson went to Baltimore, went down the bay to
Norfolk, took the train to Weldon, and was at the
appointed spot at the appointed hour. Mahone
went to Norfolk and was there arrested on the
charge of being about to engage In a duel, and
was bound over to keep the peace.

He had got that chivalrous gentleman, Cap-

SOME REMINISCENCES 87

tain James Barron Hope, to act as his second, and
Captain Hope came to Weldon and reported Ma-
hone's arrest and gallantly offered to take his
principal's place in the duel. Colonel Andrews
promptly declined the offer upon the ground that
General Johnson had no sort of quarrel with Cap-
tain Hope, but on the contrary had the highest
respect for and regard for him, and could not
think of engaging in anything hostile to Captain
Hope.

The next duel or "fiasco" that I was connected
with was between General Kemper and General
Mahone. Kemper was the commander of one of
those Virginia brigades that made that immortal
charge of Pickett's division at Gettysburg and he
had been left for dead upon the battlefield. He
recovered from his wound and had been since
Governor of Virginia.

One day I met that sturdy old warrior, Gen.
Eppa Hunton, who commanded the Eighth Vir-
ginia in Pickett's charge at Gettysburg, and he told
me General Kemper wanted to see me at the Ex-
change Hotel. I went to see Kemper, and found
him with a note from Mahone asking him if he
had been correctly reported in a reference to him in
the Dispatch newspaper, and he asked me to repre-
sent him in the affair. The reference was this.
We were then in the midst of the political cam-
paign in which Mahone led a party that proposed

88 SOME REMINISCENCES

to repudiate a great part of the State debt. I was
making speeches over the State for the support of
the pubHc credit, and Kemper was doing the
same. At a pubhc meeting at Prince George Court
House, a short time before, Kemper had said,
"What would you do, people of Prince George, if
a man should come to you urging you to do with
your private debts what William Mahone is urg-
ing you to do with your public debt? You would
drive him out of your county to the tune of the
rogue's march."

Well, there was a good deal of correspondence
conducted for General Kemper by Gen. Jubal
Early and myself which finally resulted in Kemper
saying in effect he said that and he said nothing
else, and Mahone saying in effect if that was all
Kemper said he was satisfied.

The next duel I was connected with was between
Col. Thomas Smith of Warrenton, Virginia, and
W. C. Elam, editor of the Whig, the organ of the
Readjuster or Repudiator party, and there was
nothing sham about that duel, I promise you.
Colonel Smith was the gallant and fearless colonel
of the Thirty-sixth Virginia Regiment of infantry
during the war. His honorable father had been
a member of Congress from Virginia before the
war, and had also been Governor of the State be-
fore the war. At the age of sixty-four he had
taken the field at the beginning of the war as

SOME REMINISCENCES 89

colonel of the Forty-ninth Vu-ginia Infantry, and
had gone up by successive promotions won by
wounds upon the battlefield to the rank of major-
general. In 1864 the people of Virginia took him
from the field and made him their Governor again.

One evening I got a telegram from Colonel
Smith asking me to come to Washington City. I
went, and found him accompanied by Gen. Wm.
H. Payne, Capt. A. D. Payne, and Bernard P.
Green. They showed me an editorial article in
the Richmond Whig, which contained a scandal-
ous, offensive and false reference to Colonel Smith's
father, and Smith declared his Intention of holding
Its author to a personal account. I was a bachelor
then, and lived In a small house all to myself, with
my body servant, the most reliable colored man I
ever knew. He was a prince In his race. So I
said, "Come along, gentlemen. I'll stow you
away In my house and we'll fix matters up, and
have the affair to come off secundum artem." So
they all came to my house, and I stowed them
away under cover of night.

Green made the arrangements for the duel,
which was to take place at sunrise near Oakwood.
I knew the firm of Tignor & Co., gunsmiths, had a
pair of duelling pistols that had been used In a
duel between Colonel Cameron, afterward Gover-
nor of the State, and Robert W. Hughes, after-
ward United States District Judge of Virginia, In

90 SOME REMINISCENCES

which Cameron had been badly wounded. I was
afraid to go to Tignor's myself lest i might arouse
suspicion, so I got my friend, Corbin Warwick, to
go there and get these pistols. Tignor sent with
them powder and ball and a small powder flask,
which had a very small powder measurer. He
had told Warwick to use two of these measures
when loading, but Warwick had forgotten to tell
me that. When I came in with the pistols Colonel
Smith called attention to the small charge of pow-
der that the flask gave and insisted the charge
should be doubled. But I insisted the man knew
how to load his own pistols, and was so insistent
about this that they all acquiesced. I saved Elam's
life by it. The pistols were loaded with this small
charge and when the parties fired Smith was un-
harmed, but he hit Elam squarely on the chin,
smashing that organ into tatters. If the pistol
had had a full charge of powder the ball would
have gone through Elam's neck and there would
have been no more of Elam. Elam was unable
to continue the duel and it ended there.

My friends bought the pistols and had inserted
into the stock at the breech a silver scroll on which
is engraved, "To William L. Royall, from his
friends. Col. Thomas Smith, Gen. Wm. H. Payne,
Captain A. D. Payne, Bernard P. Green." They
presented them to me, and I prize them very highly
as a memento of four very dear friends who were
as high and typical Virginians as ever lived.

SOME REMINISCENCES 91

The next duel that I was connected with was be-
tween Richard F. Beirne, editor of the State, an
evening newspaper published in Richmond, and
the same Elam, editor of the fVhig, the organ of
the Readjuster or Mahone party.

When Mahone and his Readjuster party got
possession of the State in the election of 1879, of
which I shall give a full account further on, I saw
there was no more chance for me in Virginia, so
I pulled up stakes and moved to New York City
to practice law. The feeling between parties in
Virginia became bitterer In that political contest
than It ever was anywhere In the world, I believe.
I will tell all about it when I reach that part of
my narrative, and I may, perhaps, be able to paint
it so as to make those unacquainted with the facts
realize to some extent how intense the feeling had
become.

I had been selected by the creditors of the State
of Virginia to represent them In the enormous liti-
gation that grew up between them and the State of
Virginia as the result of Mahone's triumph, and
I was in Richmond attending to some matters in-
volved In that litigation. Bierne In his State news-
paper had been taunting the Readjuster party
with all the sins that we imputed to them, with
exceedingly mild replies from the JFhig. But
one morning the Whig appeared with one of the
most insulting articles, aimed directly at Beirne,

92 SOME REMINISCENCES

that it is possible to conceive of. Belrne lived at
Ashland, a village on the Richmond, Fredericks-
burg and Potomac Railroad, about fifteen miles out
of Richmond, and he read this article in the morn-
ing before he came into the city. He Immediately
wrote a challenge to Elam, and knowing I was In
Richmond he sent it by his brother-in-law, a lad
of about nineteen, to me, with the request that I
deliver it to Elam and represent him as his second
in the duel. Belrne then put a pair of duelling pis-
tols into his buggy and drove off to Hewlett, a sta-
tion on the Chesapeake and Ohio Railroad, where
he could be communicated with by telegraph.

The young gentleman delivered the message to
me. "Now," said I to him, "I think this is pretty
hard on me after the part I have been compelled to
play In these affairs to drag me thus into another.
This is a political quarrel, and I have quit Virginia
and am no longer connected with her politics in
any way. Belrne ought to have sent his message
to one of the Virginia politicians, who are the
people on whom this burden rests. However,"
said I, "Belrne must not be left In the lurch, what-
ever takes place. You go and deliver this note to
Elam, and tell him I will provide some one to make
the necessary arrangements or will act myself." I
then hunted up Capt. Geo. D. Wise, the member
of Congress from that district, and told him some
of them should take up the representation of

SOME REMINISCENCES 93

Beirne. He conceded it, but said he did not see
why it should fall upon him. "Then," said I, "let
us throw up heads and tails whether you shall rep-
resent him or I shall." He agreed to this, we
threw, and I won.

I immediately sent word to Elam that I was
ready to go on with the affair, and he sent to me a
Mr. R. and a very notorious character who
was called "J." This old fellow was said
to have been imported from Missouri. He
had only one eye, but cunning and craftiness lurked
largely in that one. As soon as we met I said,
"Well, gentlemen, when shall the affair come off?"
They insisted that it should come off that after-
noon in the vicinity of Richmond. "But," said I,
"gentlemen, I have already told you Mr. Beirne is
at Hewlett, forty miles from Richmond, and it is
impossible for me to get him by that time." They
insisted, however, that it must be that afternoon,
and I Instantly suspected a little bluff. "Very
well," said I, "you are two and I am only one.
Wait here a few moments and I will get a friend
so as to be on a footing of equality with you." I
went out and brought back with me Captain Wise.
"Now," said I, "I am ready for business. Do you
still insist that the affair shall come off this after-
noon?" They said they did. "Very well, then,"
I said, "I withdraw the challenge." They saw at
once what I meant, which was that I would bring

94 SOME REMINISCENCES

Beirne to Richmond and renew the challenge and
be ready to fight at any moment. Then they got
reasonable. They asked me when I could be ready.
I said they understood the facts as well as I did,
but I would suggest that we meet the next after-
noon at six o'clock at Hanover Junction, which
was about half way between Richmond and Hew-
lett. This was agreed to. Then I said, "What
weapons shall be used?" They replied, "Colt's
navy revolvers, all six chambers loaded. The par-
ties to fire at the word, and if neither falls, to ad-
vance and continue firing until one or the other is
disabled." This was murder in the first degree
without extenuating circumstances, but I accepted
instantly. I then asked them at what distance the
parties should be placed from each other, and they
said eight paces. This tremendously increased the
barbarity of the thing, because at only eight paces
the length of the Colt's revolver removed all possi-
bility of missing. But I accepted instantly. I then
asked who should bring the pistols. They said that
as they were the challenged party they claimed the
right to bring them, and I conceded it.

I should have said that when Beirne sent me his
message he said that he had telegraphed for Page
McCarty who was in Washington as the regular
correspondent of his paper, and that he only de-
sired me to act until McCarty arrived.

Next afternoon I was at Hanover Junction be-

SOME REMINISCENCES 95

fore 4 o'clock. Soon after one of their represen-
tatives arrived, and I asked him if he had brought
the pistols. He said he had, and instead of the
navy revolvers prescribed he produced a pair of
small pocket revolvers that you could not hit a barn
door with at ten paces. "Why," said I, "how is
this? You prescribed navy revolvers and you have
brought these playthings." They said they had
been unable to find a pair of Colt's navy revolvers.
I then sensed written notice on them that we re-
fused to fight with the weapons they had produced,
first, because they were not the weapons they had
prescribed, and second, because they were not
dangerous weapons. "But," said I, "Mr. Beirne
has a pair of dangerous duelling pistols here of
which he offers you the choice." This they de-
clined, saying that the fight must take place with
the pistols they had brought or not at all. By this
time Beirne and McCarty had arrived, and I re-
tired as manager of the affair. Beirne was so set
upon fighting that he agreed, against my remon-
strance, to fight with the small pistols, and just as
all parties were preparing for the fight a party of
Richmond police drove up and arrested us all. I
never knew how the police got on to the affair. I
know I did not let it out, and no one who knows
Captain Wise will believe he did.

Beirne was bitterly chagrined. While we were
all standing around the depot and discussing the

96 SOME REMINISCENCES

matter, a train pulled up on the Chesapeake and
Ohio, going west, and Beirne deftly stepped on it
when the officers were not looking and sped off to
the west. In a day or two McCarty and I got into
communication with him, and he asked us to renew
his challenge and have the duel come off in the
Valley of Virginia where he was, and where there
would be no danger of interruption. We renewed
the challenge, and this time we got into negotia-
tions with "J-" and Col. Joseph Minitree,
a sure-enough Confederate colonel who had
unfortunately gone off with Mahone. There was
no bluff or humbugging about him. McCarty and
I met "J-" a"d Minitree at the Exchange Hotel.
When everything else was arranged I said, "How
about the weapons?" "Oh," said "J." with a
great air, "we have the right to furnish the
weapons and we will provide the same pistols we
carried to Hanover Junction,"

Now, the whole country was full of the Colt's
army revolver, which was the weapon that both
the Confederate and the Union cavali7 used dur-
ing the war, and when the enemy prescribed "Colt's
navy revolvers" at our first meeting I understood
them to mean army revolvers, which went by the
names indifferently of army revolvers and navy
revolvers. But when they came to Hanover Junc-
tion with little pistols they explained to me that it
was the technical navy revolver that they meant,

SOME REMINISCENCES 97

and that they had been unable to find a pair of
technical navy revolvers. That was the first time
I ever learned that there was a difference between
the Colt's navy revolver and the Colt's army re-
volver. The "navy" is a shade smaller than the
"army" but just as dangerous a weapon.

So, feeling sure that Beirne was going to renew
the matter, as soon as I got back to Richmond I
instituted quest for a pair of technical navy revol-
vers, and soon got a superb pair of them. I no-
tified "J." that I had them and that they
would be at his service when we renewed negotia-
tions. When we had arrived at the point when
"J." said they would produce the same small
pistols for the fight, I said that was perfectly satis-
factory to us, but it must be inserted in the cartel
that we had got a pair of technical navy revolvers
the use of which we tendered for the duel. "J."
kicked violently against this, but I stood firm, and
presently Minitree spoke up and said, "Oh, hell,
'J.,' you have backed down, and why not say
so!" Thereupon it was inserted in the cartel and
stands there to-day that Beirne's friends had pro-
cured a pair of navy revolvers and had tendered
the use of them to Elam's friends, but that they
had declined to use them and insisted on fighting
with the small revolvers.

The fight came off, and at the first fire Beirne

98 SOME REMINISCENCES

shot Elam in the thigh and the duel was stopped
at that point.

This ended my experience with duels. After an
experience so elaborate as mine it sounds strange
to hear me say I never approved of duels but al-
ways detested them in my secret heart. The sys-
tem was founded on coercion rather than reason,
and coercion, in whatever form, I have always ab-
horred. But one must understand society as it ex-
isted in Virginia to understand my participation in
them. It was the general understanding that the
man who did not fight when he was insulted or the
man who refused to fight when challenged had a
smirch upon him from that time on. Some ten
years before the civil war Mr. McGowan of South
Carolina had a duel with a Mr, Cunningham in
which McGowan was desperately wounded. Mc-
Gowan became a very distinguished general officer
in the civil war. After the war a friend of mine
met him at the Greenbrier White Sulphur Springs
and asked him what the duel between him and Col-
onel Cunningham was about. "Well," said Gen-
eral McGowan, "I never did clearly understand
what it was about, but you know it was at a time
when all gentlemen fought." Although, as I have
said, I utterly detested the whole business, yet I
should have challenged a man that I thought I was
called on by public opinion to challenge and I
would have accepted a challenge if it had been

SOME REMINISCENCES 99

given to me. Thank God the whole sentiment and
opinion of the people has changed, and if a man
killed another in a duel in Virginia now I think
he would stand a very fair showing for the gal-
lows.

CHAPTER III

THE STATE DEBT THE PRESIDENCY

About 1830 the State of Virginia embarked
upon the policy of aiding works of internal im-
provement. She sold her bonds bearing six per
cent, interest and subscribed to the stock of canals,
turnpikes, and railroads. She paid her interest on
these bonds regularly until the civil war broke out,
but she paid no interest on them after that date.
At the end of the war her debt amounted, princi-
pal and overdue interest, to more than $40,000,-
000.

There was a bogus government of Virginia dur-
ing the war at the head of which a man named
Pierpont figured, which dodged about around the
borders of Virginia during the war. Near the end
of the war Mr. Lincoln recognized this as the gov^-
ernment of Virginia, and in 1865 Pierpont called
a legislature together. This body met in Rich-
mond, and was composed of as fine a set of men as
ever gathered together in the State. Virginia was
prostrate. Her slave labor, on which her agricul-
ture depended, was suddenly freed; the armies had
destroyed most of her fencing and taken from her
people almost all of their stock; there was no

SOME REMINISCENCES loi

money in circulation, and, in a word, the poor old
State, ravaged and prostrated, was in the depths
of woe and despair. The State's bonds were owned
in the Northern States, but principally in England.
Many communities in that condition would have
taken the ground that as the money was loaned
upon the faith of the slave labor, since the slaves
were set free the debt would no longer be recog-
nized. But that sort of action never came from
Virginia when she was herself and this legislature
was elected by the white people of Virginia before
there was any infusion of negro blood into her
body politic.

In December, 1866, her Legislature unani-
mously passed the following resolution :

Whereas the public credit of the State of Virginia and
the credit of our citizens has been injured and is now
being injured by the apprehension that this General As-
sembly will repudiate the debt of the State and authorize
the repudiation of the debts of her citizens; and whereas
we deem it important to remove this apprehension from
the minds of all persons, and so to remove it at once;
and whereas if the intention existed on the part of the
General Assembly to pass any repudiating act the con-
stitutions of both the State and Federal Government posi-
tively prohibit the passage of any such law; and in order
to prevent any further injury to our credit, therefore

1. Resolved, That the General Assembly will pass no
such acts of repudiation.

2. That such legislation would be no less destructive
of our future prosperity than of our credit, our integrity
and our honor.

102 SOME REMINISCENCES

So spoke Virginia in her sackcloth and ashes,
the last time that the real Virginia had an oppor-
tunity to speak.

In 1869 the wretched reconstruction acts of
Congress had overthrown this true government of
Virginia and had set up a government based almost
equally upon negro as well as white suffrage. The
white people of Virginia, however, controlled the
Legislature. In 1871 the Legislature took up the
subject of the public debt. When the debt was
being created West Virginia was a part of Vir-
ginia, being about one-third in point of population
and territory, and Virginia had thought that as
West Virginia had participated in the borrowing,
she should take her share in the paying. The debt
was then about $45,000,000 principal and interest.
In 1 87 1 the Virginia Legislature passed an act
which provided for Virginia assuming two-thirds
of the debt and assigning one-third to West Vir-
ginia. The act provided that if a bondholder
would deposit his bond with the State of Virginia
she would give him her new bond for two-thirds
of the principal and overdue interest (the interest
being capitalized), bearing six per cent, interest,
and a certificate stating that West Virginia owed
him the other third. As an inducement to him to do
this the act provided that the new bond should bear
tax receivable coupons to represent the interest;
that is, the coupon bore upon Its face the State's

SOME REMINISCENCES 103

contract that It would be received for its face value
in payment of all taxes, debts, and dues to the
State, so that the State would be unable to collect
any taxes until she had provided for these coupons.
The bondholders jumped eagerly to the acceptance
of this offer, and in a short time $20,000,000 of
the new bonds had been issued bearing these cou-
pons, which made a first lien upon the State's reve-
nues of $1,200,000 per annum. When the fund-
ing had gone to this extent the Legislature re-
pealed the funding act and thus put an end to the
funding scheme.

This presented William Mahone, of whom I
have given a sketch in the preceding chapter, with
his opportunity. The negro vote nearly balanced
the white vote in the State and the negro always
votes solidly against what he thinks the white
people faV'Or. He was as ready to vote for pay-
ment of the debt as for the repudiation of it, or for
the repudiation of the debt as for its payment; all
he wanted to know was, which way the white
people were going to vote, and then he was going
to vote the other way. Mahone, knowing this, re-
solved to start a new political party based upon this
enormous negro vote.

The people of Virginia were all ruined by the
war, and even a slight taxation was excessively bur-
densome to them. The chance was most favorable
therefore for him to appeal to the white people.

104 SOME REMINISCENCES

The $1,200,000 of coupons that had to be paid be-
fore any money could be raised for the public
schools and for the charges of government re-
quired a rate of taxation that was very trying,
therefore Mahone, who had run his railroad into
bankruptcy and been turned out of its presidency,
now came forward with a proposition to "read-
just" the State debt, which "readjustment" was
nothing but an euphemism for a plan to repudiate
a large part of the debt. He knew he could have
all the negroes for his plan and all the worthless
element of the white people, and he thought these
two would certainly control the State. He got
all the negroes and all the worthless whites, but
he got also a considerable following of sturdy and
honest white men, who, resentful of the proposi-
tion to pay when the war had deprived them of the
means of paying, refused to assent to the payment
of the debt.

But the serious question confronted Mahone,
"How are you going to 'readjust' the tax receivable
coupons?" No public declaration was made of
the way this difficulty should be met, but the plan
resolved on was that the courts of the State should
be filled with "Readjuster" judges who would pay
no attention to the fundamental law of the land,
that is, the Constitution of the United States, but
would make all rulings necessary for the exclusion
of the coupons from the treasury. This became a

SOME REMIiNISCENCES 105

cardinal proposition in "Readjuster" policy. Party
lines were drawn, and Mahone with his Falstaft
party of Mouldy, Shadow, Wart, Feeble, and Bull
Calf, and the white people of Virginia upon the
other side, went before the people in the fall of
1879 for the election of a Legislature. Mahone
won and had a considerable majority in both
branches of the Legislature, and this body pro-
ceeded at once to elect Mahone to the United States
Senate.

I will suspend this narrative at this point to tell
of some events that happened along here contem-
poraneously with the progress of the State debt
fight.

When Mahone, through the negro vote, tri-
umphed in the State, and placed the stigma of re-
pudiation on Virginia's escutcheon, which had
theretofore been without a blemish, I, in common
with all other true Virginians, was deeply grieved
and mortified. To try and stem the torrent that
threatened to submerge all that was decent and
manly in the State, I determined to abandon my
profession and start a daily newspaper. I did this
and established at the beginning of 1880 a news-
paper called The Commonwealth. This is to be
seen in the libraries at Washington and at Rich-
mond, and it testifies for itself how I performed
the part that I had set for myself. It is enough
for me to say here that I made it very hot for the
Readjusters.

io6 SOME REMINISCENCES

Along in the spring of 1880 the Federal author-
ities commenced prosecutions against our judges
for not putting negroes upon juries. This raised a
profound sensation in the South, and it stirred me
as deeply ns had repudiation. I went into that
fight with my newspaper with all the vigor in my
nature. The State carried the question before the
Supreme Court of the United States, whether Con-
gressional enactments that dragged her judges be-
fore Federal courts were consistent with the Con-
stitution of the United States. The Supreme Court
upheld the acts of Congress, but Mr. Justice Field
and Mr. Justice Clifford dissented. Justice Field
in his dissenting opinion contended for a construc-
tion of the Constitution that was so necessary to
the poor, wounded, bleeding, downtrodden South,
and that was so fair and just to all sections that I
threw my hat into the air and called out to my fel-
low citizens, "This is the man for the Democratic
party to nominate this summer for President!"
From that moment I put my paper to work to try
and secure Judge Field's nomination. We had a
primary election in Richmond to select delegates to
the National Democratic Convention from that
Congressional district, which was to meet at Cin-
cinnati in June. I was elected to represent our
Congressional district, with my dear friend Judge
E. C. Minor, judge of the Law and Equity Court
of the city of Richmond, one of the noblest fellows

SOME REMINISCENCES 107

that ever lived, as my associate. I had made a
great impression with my paper on the whole
South for Judge Field, and if the Pacific Coast
had been for him he would certainly have been
nominated. But from the time Judge Field had
been made a Federal judge he had been smashing
Dennis Kearney and his associates, and the Demo-
cratic party of the Pacific Coast was pretty much
composed of that element. When we got to Cin-
cinnati we found the Field sentiment triumphant
everywhere except amongst the Pacific Coast dele-
gates. There we found the most determined oppo-
sition to Field, and this lost Field the nomination
and the Democratic party the election. I quote
here a letter which I wrote from Cincinnati to my
paper, the local coloring of which may still give it
interest:

Cincinnati, June 25, 1880.

I feel that I have been delinquent to the readers of the
Conunonivealth in not informing them before this of what
I have seen and observed here. But the pack and the
jam, the hurry and the bustle, the absolute confusion that
has prevailed at all times and all places since I arrived
must be accepted by your readers as my excuse.

The convention has been one of the most memorable
ever held in American politics. I should desei-ve to lose
the confidence of my readers if I said I think the nomi-
nation the strongest that could have been made.

I have been warning the public through the columns
of the Com?nonwealth for months against the danger of
nominating a soldier. I have been urging upon it that

io8 SOME REMINISCENCES

the true strength of our fight was the fact that we were
fighting for a government of civil law as against a govern-
ment of force, and that to make a soldier our nominee
was to emasculate in some degree the strength of our
claim. The enthusiasm which we have witnessed here
(and it has been something wonderful) since the nomina-
tion was made has not changed my opinion upon this
point.

The place was full of Democrats, not Republicans, and
the ten or fifteen thousand persons that we heard clamor-
ing were but a fraction of the fifty millions of people in
the United States. Holding these views I was the last
member of the Virginia legislature to consent to the
nomination of General Hancock, and I never did give my
assent to it until he had received votes enough to nominate
him. The pressure which I had to resist to this end was
as much as I was able to endure. The call of the roll of
States was hardly finished when it was obvious that Gen-
eral Hancock would be nominated.

Wisconsin, which had been divided, had moved to
change her vote and make it solid for Hancock. This
was the beginning of a general stampede. State after
State arose and announced that her vote should be changed
and made solid for Hancock. Every person in the im-
mense hall was on his feet ; cheers rent the air. The
Louisana banner, bearing a superb portrait of the Gen-
eral, was rushed to the stand and waved over it ; the small
banners that marked the location of the delegates from
each State were snatched from their fastenings and carried
forw^ard by enthusiastic men and grouped around the
Louisiana banner; the whole enormous mass of human
beings was absolutely mad. There was no sense, no rea-
son, no judgment anywhere. The following incident is
amusing and characteristic also. Coming around to the
hall in the morning my colleague, dear old Ned Minor,

SOME REMINISCENCES 109

said to me, "Royall, I see a strong disposition to break all
ranks and nominate Hancock. I don't believe in doing
it and I am not going to be carried off my feet into any
such scheme." "Minor," said I, "those are exactly my sen-
timents, and I intend to stand out firmly against it."
Would you believe it, that when the rush set in and the
enthusiasm passed beyond control, Minor was one of the
first to go over to Hancock? He was standing in his
chair next to the West Virginia delegation and their
banner was tied to Minor's chair. An enthusiastic West
Virginian snatched the banner up and, in doing so, upset
Minor's chair and landed him flat on his back on the
floor. I looked down at him and said, "Lie there, sir, as a
fit punishment to you for your treason."

The Virginia delegation, equally carried away by the
prevalent enthusiasm, wanted to have Virginia's vote de-
clared unanimous for Hancock. All of them except my-
self had agreed to it. My intimate friends of the delega-
tion crowded around me and urged me by every considera-
tion to come in. I refused to allow my judgment to be
carried off its feet. At last I was told that he had received
the necessary 492 votes and therefore was nominated. I
then told our Chairman, Mr. Bocock, that he might an-
nounce that Virginia gave her twenty-two votes for him.
The confusion was so great that Mr. Bocock could not
get the attention of the chair. He had to go to the desk.
It then occurred to me that possibly there was a mistake,
and I went to the clerk's desk and counted the vote and
found that he had received only 470 votes. I rushed to
Mr. Bocock and got near enough to exclaim to him just
as he was about to announce Virginia as unanimous that
I refused to vote for General Hancock, and he accordingly
cast her last ballot twenty-one for Hancock and one for
Field. Soon after that another State changed and another,
and he had the necessary number, whereupon I told Mr.

no SOME REMINISCENCES

Bocock that he might announce Virginia as unanimous
and it was then done. The Louisiana banner bearing the
General's portrait being brought to the stand and waved
in the face of the convention caused the nomination. A
frenzy seized every one. Every one thought it indicated
that he was nominated, whereas he lacked a hundred and
fifty votes. Every one wanted then to be on the band
wagon, and so ever>' one was then in a hurry to have his
vote changed to Hancock. But for this singular coinci-
dence I do not believe General Hancock would have been
nominated. We have nominated a brave, true, chivalrous
gentleman, compared with whom, personally, Garfield is
a small potato, but I fear we have not developed the full
strength of our cause. However, we want to see the
journal that will do more loyal and energetic work to
secure General Hancock's election than the Comnioii-
ivealth. I believe that if the delegates from the Pacific
Coast had backed Judge Field with anything like
unanimity, nothing could have prevented his nomination.
It was the unanimous sentiment of the delegates from at
least two-thirds of the States that he was the man to
nominate. Had his Coast come forward and demanded
his nomination nothing could have averted it. But it
was impossible to get anything like unanimity from them
in his behalf. I found this matter to be just as I had
expected.

From the time of his appointment to the Supreme Court
bench. Judge Field has been holding his court in Cali-
fornia and smashing Kearneyism and Communism when-
ever he could get an opportunity. That element of the
Democratic party is his bitter enemy, and unfortunately
for the Democratic party, it is largely composed there of
that element. Those delegates who represented con-
stituencies in which Kearney is thought a statesman could
not be induced to support Judge Field. Kearney himself

SOME REMINISCENCES iii

was at Cincinnati working with might and main against
him. It was generally conceded by the Pacific Coast dele-
gates that he could carry the Pacific Coast States, which
no other Democrat could, for the reason that what he
lost in the Kearneyites refusing to vote for him he would
more than make up from the Republican ranks. I always
thought his nomination would have been the wisest thing
the Democratic party could do, and I have seen no cause
to change my opinion. The most notable action taken
by the Convention was its exclusion of the Tammany dele-
gates. As soon as it became known that the Tammany
delegates would contest the seats of the regular delegation,
it was obvious that the most serious fight that would take
place in the convention (the nomination of President
being left out of the account) would be before the Com-
mittee on Credentials. This committee was to be com-
posed of one from each State — thirty-eight in all — and
the Virginia delegation conferred upon me the honor of
making me their representative. We met at 8 P. m. of
Wednesday, the 23d. Judge Comstock, Judge Amasa J.
Parker, Mr. Moak of Albany, and John Kelley him-
self appeared before us to represent the Tammany side,
and Genl. Faulkner, chairman of the New York delega-
tion, Mr. Fellows a member of it, and Ex-Governor G. C.
Walker with some others represented the regular Demo-
cracy.

I listened carefully to the discussion and got at the
real state of affairs. The Tammany delegates were dis-
tinctly bolters and independents, and we could not have
admitted them to seats in the convention without giving
the sanction of the National Convention to bolts at the
pleasure of every sorehead. Their case rested upon these
grounds. The first was that they represented 77,000
voters. We, whose duty it was to inquire what persons
claiming to be accredited representatives of Democratic

112 SOME REMINISCENCES

constituencies were really so, could pay no attention to this
fact in the absence of proof that their constituencies were a
part of the regular Democratic party of New York, and
none could be produced looking toward this. The second
was a general summary of the grievances of Mr. Kelley
against Mr. Tilden and of Mr. Tilden against Mr.
Kelley. This could afford us no ground to say that the
Tammany delegates were regular Democratic delegates.
The third was more serious. They claimed that there was
no representative of the New York Democracy at Cincin-
nati, for the reason that the State Convention, that which
appointed the delegation claiming to be the regular dele-
gation, was called without any authority, and therefore
that Tammany had taken no part in that convention. The
ground upon which they claimed that the State Committee
which called the convention had no authority to call it
was that prior to issuing the call it had expelled five of its
members and filled their places without any authority for
so doing. The regular delegation made the following
reply to this claim. They said that when the State Con-
vention assembled last fall to nominate a candidate for
Governor of New York, John Kelley and his Tammany
delegates came to it claiming to be delegates. Their seats
were contested by a competing delegation, and after hear-
ing the contest the convention decided in favor of seating
Kelley and his delegates and excluding the others. That
they then took part in all the proceedings for organizing
the convention, were put on all the committees, and
five of them were put upon the State Executive Com-
mittee which was to have charge of the party in the
future. That when the time came for making nominations
for Governor, one side put up Governor Robinson and the
Kelley side put up General Slocum. That the calling of
the roll was then proceeded with, and had gone so far
that but three counties were to vote when, it being obvious

SOME REMINISCENCES 113

that Robinson would be nominated, Kelley and his asso-
ciates rose and left the convention, and from that time to
this they have maintained their separate organization.
That the convention thereupon passed a resolution au-
thorizing the State Committee to declare the seats of any
of its members who adhered to the bolters' organization
vacant, and that the five Kelleyites on the committee re-
fusing to co-operate with the others, had been declared by
them no longer members of the committee, and their places
had been filled, and that the committee thus constituted
had called the State Convention that appointed the regular
delegates. This was the entire case, and as there then could
be no doubt that the Tammany delegates had no sort of
right to admission, I urged the committee, with all the
emphasis that I could command, to exclude them and re-
tain the regulars in their seats, and it was done by a vote
of thirty-four States against four. The four dissentients
made a minority report recommending the seating of
twenty Tammanyites and fifty regulars, but the convention
sustained the report of the committee by an overwhelming
vote, and thus gave a decisive and most valuable lesson to
bolters all over the United States.

I must say that John Kelley made much the most favor-
able impression on me of any of those who came before
our committee. I had the impression that he was a vulgar,
prize-fighting Irishman of the Alorrissey order. On the
contrary, I found him a large-brained, cultivated man,
with the manners of a gentleman and a self-possession
without ostentation indicative of great reserve force. He
made an address to the committee which, though he could
make no case for his side, for the reason that no case could
be made for it, contained many striking points. He placed
himself upon an elevated plane and looked down with
undisguised scorn upon the other side. He told one of
their speakers, Mr. Fellows (their representative, with
S

114 SOME REMINISCENCES

whom he shook hands the next day before the convention)
in the most scornful and imperious style that he should re-
quire him to confine himself to the truth. In speaking of
Mr. Tilden he was especially lofty and scornful, saying
something to the effect that if Mr. Tilden would only
fight him fairly he would never have caused the breach
in the party, "but," said he, "his methods of attack are
always by some indirect and covered way," and he could
never tell when he was to expect them. Whilst the case
was being discussed, Kelley sat in most self-poised and
rather dignified style at a window. General Faulkner,
chairman of the regular delegation, was speaking, and he
said he would ask Kelley whether he would support the
nominee of the convention whoever he might be. Kelley
made no response, whereupon Faulkner pressed his ques-
tion, and the committee seeming to expect an answer,
Kelley rose and with great power and scorn in his manner
said, "If a gentleman should ask me that question I would
answer; but to answer you, never." All the other repre-
sentatives of Tammany said to the committee that they
would support the nominee whoever he might be, and
afterward Kelley on his own motion said that he would
support the nominee whoever he might be, provided it was
not Mr. Tilden, but that he would not support him.

I may as well add here all I have to say regard-
ing my newspaper venture. In the early part of
the following September, when I had moved to
New York to live, the National Democratic Com-
mittee met in New York to notify General Han-
cock of his nomination. It determined to call in a
body upon Mr. Tilden, whose nomination I had
been most valiantly fighting in my newspaper. My

SOME REMINISCENCES 115

friends, Senator John W. Daniel of Virginia, and
Senator Jonas of Louisiana, insisted that I should
go along with the committee to call upon him. Be-
cause of the opposition I had made to his nomina-
tion I was very reluctant to do this, but I finally
yielded to their importunities.

When we got around to his house we found
Ex-Governor Stephenson of Kentucky acting as
master of ceremonies and introducing each arrival
to Mr. Tilden. I declare when I saw him I was
never so shocked in my life. He looked like an
electrified mummy, but just a little electrified.
He was wasted away to a shadow. A great
tall silk hat came down almost over his eyes
and ears and his lower jaw seemed about to fall
and leave his mouth wide open. His face was so
emaciated it looked like the face of a corpse two
weeks after death. He had his right arm across
his breast and it was held up by an attachment of
some sort. He shook hands with the tips of the
fingers of his left hand, and he seemed hardly able
to bring that left hand up to shake with. He was
a little dried-up semblance of the man that had
once inhabited his clothes. He would shake hands
in a listless, lifeless sort of way with each gentle-
man as he was introduced, much as if he did not
know and did not care what was going on. Nev-
ertheless, the old fellow knew exactly what was
going on. When it came to my turn Governor

ii6 SOME REMINISCENCES

Stephenson said, "Mr. Royall of Virginia, Mr.
Tilden." He brislced up at once, and catching hold
of my hand he pulled my ear down to his mouth
and said, "From what part of Virginia?" I an-
swered, "From Richmond." The old fellow rec-
ognized his enemy at once, and dropped my hand
as if it had been a red-hot poker, and then he de-
liberately turned his back on me. Daniel and
Jonas were standing by and saw it, and I said to
them, "See now what you have got me into. But
come on, and let's get even with him by drinking
his champagne," which we proceeded to do.

Running a daily newspaper is a very expensive
luxur}^ By the first of August, 1880, I had ex-
hausted all my savings, and my paper not being
self-sustaining, I had no alternative — I had to close
it. With the record I had made fighting Mahone
and his party and with Mahone and his party in
full control in Virginia, I knew there was but little
opportunity for me in Virginia. So I determined
to close my paper and go to New York to practice
law. I opened a law office in New York in Sep-
tember, 1880.

I will now return to Mahone and the debt.

Though Mahone had elected a working major-
ity in the Legislature in the fall of 1879, he still
had a serious obstacle in the way. A debt payer.
Col. F. W. M. Holliday, was Governor and he
would remain Governor until Januai7 i, 1882.

SOME REMINISCENCES 117

He could be relied upon to v^eto any repudiation
legislation that Mahone's Legislature might pass.
Accordingly, it passed sev^eral such acts and the
Governor vetoed each one. Repudiation made
little progress, therefore, prior to January i, 1882.
But in the fall of 1881 a new Legislature and a
Governor were to be elected, and Mahone's party
elected both Governor and Legislature.

Before carrying the narrative further I ought to
mention some of the pranks of the Mahone Legis-
lature elected in 1879. ^ have already referred to
the fact that the Mahone program was to fill the
judicial offices with men who would kill the cou-
pons without regard to law, order, or reason. This
Legislature gave a striking object-lesson In this line
of policy.

At that time there was a judge for each
county — 100 In all. The Readjusters put up a
man named Claiborne for judge of Franklin
County. This was where Gen. Jubal A. Early had
always lived, and he knew Claiborne well. He
came to Richmond, and In a written paper he in-
formed the Readjuster caucus that Claiborne was
a professional gambler, and not only so, but a
cheating professional gambler; that he played the
game of poker with a "lizard," which was an in-
strument with a hand, concealed under the vest,
with an attachment that extended down to the toe,
and If the player was not satisfied with the cards

ii8 SOME REMINISCENCES

dealt him he could exchange it for those held by
the "lizard." He said the "hzard" was then at
a blacksmith shop for repairs, and he named the
shop where the Readjusters could see it. Without
making any investigation whatever, the Readjust-
ers made Claiborne judge of Franklin County.

In a short time Claiborne was indicted by his
own grand jury for gambling on a race track. The
statute under which he was indicted forbade
gambling "at an ordinary race track," or other
public place. The word "ordinary" has from col-
onial times been the technical word for "inn" or
"tavern" in Virginia. Claiborne got his friend
Mays, whom the Readjusters had made judge of
the nearby county of Botetourt, to come over and
try the case. Mays held that the statute forbade
gambling at an "ordinary race track," and that the
race track at which Claiborne had gambled was
an "extraordinary" one, and therefore not within
the statute.

After the election in the fall of 1881 the Ma-
hone party were in complete possession of every
department of the State Government, and they pro-
ceeded to put their theories into the form of law.
They first brought the debt down to little more
than half, and they then proceeded to pass acts de-
signed to kill the tax receivable coupons.

Most of the owners of the State's bonds lived
in England, and these proceeded to arrange for a

SOME REMINISCENCES 119

fight In the courts with the State upon the propo-
sition that the coupons contained the State's con-
tract that they should be received in payment of
her taxes; that the Constitution of the United
States forbade a State to pass any law impairing
the obligations of contracts, and that her legisla-
tion undertaking to prevent her collectors from re-
ceiving the coupons for taxes was unconstitutional
and void. The organization of creditors did me
the honor of selecting me to conduct the fight for
them, and I abandoned all other business to attend
to this. I applied to a State court for a writ of
mandamus to compel a collector to receive coupons
in payment of taxes, nothwithstanding the State's
statute forbidding him to receive them, and the
State court refused to grant the writ. I appealed
the case to the Supreme Court of the United States,
which, to the astonishment and dismay of the
creditors, sustained the State court. This decision
produced a very profound impression upon the
white people of Virginia. One of their chief argu-
ments with the Readjusters was that the Supreme
Court would break up whatever they did. Ma-
hone and his party had now become avowedly a
part of the Republican party and the white people
believed that a Republican Supreme Court had
made this decision to help along their ally Ma-
hone. Instantly all the white people of the State
resolved as one man to abandon the creditor and

I20 SOME REMINISCENCES

force the readjustment of the debt. From that day
on I had to fight the entire population of Virginia
and when I look back over the contest I am amazed
at how I was able to sustain myself for eight years.
The court had said in its opinion that the State's
contract bound it to receive the coupon "when of-
fered," and that no State legislature could interfere
with the obligation of that contract. I insisted at
once that had won me the case; that I had lost only
on a question of procedure; that the coupon holder
was not interested in making the State take the
coupon into her treasury; that all he was con-
cerned with was to offer it to the State, and if she
chose to lie out of it it was her affair and not his;
that all he was concerned with was that she should
not molest him m any way after he had tendered
the coupons, and if any of her officers did molest
him thereafter he could make them pay him dam-
ages. I at once announced this as the logical result
of the decision, and had my announcement received
with derision and ridicule by the great body of the
profession. Nevertheless, I stuck to my guns and
took other cases to the Supreme Court, and when
the decision came in 1884 the Supreme Court held
the law to be exactly as I had said it was, in an
opinion delivered by Justice Stanley Matthews
(Poindexter v. Greenhow, 114 U. S. R.).

I now had matters in perfect shape for practical
operations except for one thing. The Virginia

SOME REMINISCENCES 121

courts were filled with men put there to defeat any
efforts the coupon holders might make. Although
I had the law theoretically what I wanted it, how
could I expect any practical relief from a Claiborne
or a Mays? I had to get an impartial court or I
could never expect anything material.

The United States courts were impartial, and if
I could only have my litigation tried there I had a
show. But from time immemorial it had been
the understanding of every one that the United
States courts could try only cases when one party
was a citizen of one State and the other party was
a citizen of another State, and both parties to my
litigation were citizens of Virginia. I took the
position that when a question arising under the
Constitution of the United States was involved in
a case a United States court could try it if both
parties were citizens of Virginia. I took a case in-
volving this point to the Supreme Court of the
United States and it said I was right. I now had
a good cause of action and an impartial court in
which to try it. I got people all over the State to
stand on their tender of coupons, the collectors
levied, I sued the collectors for damages in the
United States court, and in every case I recovered
damages. Matters were all running my way in a
flood tide, and it looked as if I was going to force
the State to pay her coupons dollar for dollar.

I will mention one incident that will illustrate

122 SOME REMINISCENCES

how completely the tide was running my way. In
her desperation the State was passing into a statute
every scheme any visionary would suggest. So she
got to indicting my clients for using coupons. Now
men who will charge a battery can be intimidated
by a writ. Men will not stand prosecutions. I
saw at once the State would beat me if I could not
stop these prosecutions, but how to stop them was
the question. Suddenly it occurred to me to sue
the grand jury in the United States court for dam-
ages for indicting my clients under laws that they
knew to be repugnant to the Constitution of the
United States. The grand jury was composed of
merchants, and If there is anything on earth a mer-
chant detests It Is to have an announcement made
that he has been sued. Accordingly, I sued the
grand jury In the United States court for damages,
and I made public proclamation that I would sue
any other grand jury that Indicted my clients. This
brought the Indictment of my clients to a peremp-
tory ending. At the next term of the Hustings
Court of the city of Richmond the grand jury made
a written report to the court that they had abund-
ant evidence on which to Indict Mr. Royall and his
clients, but that he had sued the preceding grand
jury and had announced that he would sue any
other grand jury that indicted his clients, and that
they therefore declined to indict them. This paper
can be seen now in the records of the Hustings

SOME RKMINISCENCES 123

Court of Richmond. Thereupon I was indicted
for intimidating the grand jury. I was tried, con-
victed, and sentenced to pay a fine of $150 and be
confined in jail for six months, and I was taken to
jail. I at once applied to the United States court
for a writ of habeas corpus and on the hearing was
discharged.

I had the State by the throat, and it was now
only a question of months when she would be com-
pelled to submit. But now happened one of the
most unexpected things that could possibly happen.
The Supreme Court of the United States, seeing
the use I was making of the law it had laid down,
released the State from my grip.

Somebody, with an ingenuity of the type that
is credited to the Devil, — there are a number of
claimants for the honor, — got up this scheme: the
officers should report the man who tendered cou-
pons for his taxes and the Attorney-General in
some cases and the Commonwealth's Attorneys of
the counties and cities in the others should sue the
person in the State courts for his taxes in the name
of the State. The coupons were engraved simply
— not signed — and their genuineness could be
proved by expert evidence only. But the State
provided that expert evidence should not be used
on these trials. The coupon holder was sued for
his tax therefore in the State Court, the State
denied the genuineness of his coupon, and the cou-

124 SOME REMINISCENCES

pon holder was denied a means of proving his
coupon to be genuine. Judgment would, of
course, go against the coupon holder with heavy
costs. When execution was issued on this judg-
ment, if the coupon holder tendered coupons in
payment of the judgment the officer was not to
levy on his property and sell it. He was to report
the fact to the Commonwealth's Attorney, who
was to sue the coupon holder again, get another
judgment, and add a second set of heavy costs.
And this was to go on until costs were piled moun-
tain high and the coupon holder would be broken
by the costs even in depreciated coupons.

When this act was passed I brought a suit in
equity before United States Circuit Judge H. L.
Bond praying for an injunction to restrain the At-
torney-General and the Commonwealth's Attorn-
eys from bringing the suits provided for in it, upon
the ground that the law impaired the obligation
of the coupon contract and was unconstitutional
and void. Judge Bond granted the injunction.
Thereupon the Attorney-General of the State and
two of the Commonwealth's Attorneys violated the
injunction by bringing the suits ordered. I had all
three of them up before Judge Bond on a rule to
show cause why they should not be punished for
contempt of court, and after hearing the case Judge
Bond held them guilty of contempt and sent all
three of them to the Richmond city jail.

SOME REMLNISCENCES 125

The eleventh amendment to the Constitution of
the United States provides that the judicial power
of the United States shall not extend to a case in
which a State is sued. Way back in the time of the
United States Bank the State of Ohio had passed a
law imposing taxes upon that bank intended to
drive it out of Ohio. The bank sued her officers
for an injunction to restrain them from putting this
law into effect, and the Circuit Court of the United
States enjoined them and put the Treasurer of the
State of Ohio in jail for violating the injunction.
This fact does not appear in Mr. Wheaton's re-
port of the case (Osborn v. The Bank, 9 Wheat.) ,
but the original record shows it. The case was
appealed to the Supreme Court of the United
States upon the ground that the suit was in sub-
stance and effect a suit against the State of Ohio
and barred therefore by the eleventh amendment.
The opinion of the court was delivered by Chief
Justice Marshall and the decision of the lower
court was affirmed. The court laid this down as
the test in all cases where it was claimed that a
State was sued. If the State was named upon the
record as a party defendant, then the suit was
against the State. But if the State was not named
as a party defendant on the record then the suit
could never be said to be one against the State.
That was understood to be the law from that time
forward, and a few years after the war the ques-

126 SOME REMINISCENCES

tion was again brought up before the Supreme
Court In Davis v. Gray, i6 Wallace, and the court
again declared that the rule laid down by Chief
Justice Marshall in Osborn v. The Bank was the
true rule. Backed by that rule I felt perfectly safe
and had not the slightest fear that the State's offi-
cers would be able to escape the shackles with
which I had bound them.

The Attorney-General and the two Common-
wealth's Attorneys applied to the Supreme Court
of the United States for a writ of habeas corpus
to discharge them from their imprisonment, upon
the ground that in putting the State's law, which
was conceded on all hands to be repugnant to the
Constitution of the United States, into effect they
were In substance and fact the State, and that the
eleventh amendment forbade the United States
Court to enjoin them from putting that law Into
effect. It was the cases of Osborn v. The Bank and
Davis V. Gray right over again. The officers above
were named as defendants and the State was not
mentioned, so I had no fear whatever for the re-
sult. But to my amazement, when the decision
came the court, In an opinion delivered by the same
Justice Stanley Matthews who had delivered the
opinion of the court holding her bound on her con-
tract, held that the suit was one against the State
of Virginia and it discharged the officers from Im-
prisonment (Ex parte Ayres, 123 U. S. R.).

SOME REMINISCENCES 127

I once heard the following anecdote : A man
tracked a grizzly bear over mountain and dale for
a long way, and suddenly gave up the pursuit and
returned. When he was asked why he had aban-
doned the chase he said, "The trail was getting too
d — d fresh." When it was a mere matter of de-
claring theoretical law the Supreme Court had no
difficulty about giving the coupon holders all of it
that they wanted. But when Judge Bond took
them at their word and proceeded to put this theo-
retical law into practical effect that was another
story.

I want to make it plain that the decision of the
court in this case of Ayres was in direct conflict
with what had been held by the Supreme Court
from the foundation of the government, in case
after case, up to the Ayres decision. Osborn v.
The Bank, decided in 1824, was the first case, and
I have already stated the mam facts in that
case. The essential facts are that the old Bank of
the United States had a number of officers in the
State of Ohio and that the people of that State
were determined to drive it out of Ohio if they
could. To that end the Legislature of Ohio
passed an act imposing a tax of $50,000 on each
office that the Bank of the United States had in
Ohio, and it directed Osborn, the auditor of the
State, to collect it by warrant in the State's
name. The law was repugnant to the Constitu-

128 SOME REMINISCENCES

tion of the United States, as the Supreme Court
held, because a State could not tax the Bank of
the United States.

Osborn, the auditor, was about to collect this
tax when the Bank applied to the United States
Circuit Court for an injunction to prevent his so
doing, upon the ground that the law imposing the
tax and directing the auditor to collect it was re-
pugnant to the Constitution of the United States.
The Circuit Court granted the injunction, and Os-
born, the auditor, appealed to the Supreme Court
of the United States, where it was insisted for Os-
born that he was in substance and effect the State
of Ohio. The opinion of the Supreme Court was
delivered by Chief Justice Marshall, and he held,
as above stated, that a suit could never be held to
be one against a State unless she was named upon
the record, and the decision of the lower court
was consequently sustained. In delivering the
court's opinion Chief Justice Marshall said (9
Wheat., 857) :

It may, we think, be laid down as a rule which admits
of no exception that, in all cases where jurisdiction depends
upon the party, it is the party named on the record. Con-
sequently the eleventh amendment, which restrains the
jurisdiction granted by the constitution over suits against
States, is of necessity limited to those suits in which a State
is a party on the record.

After the ending of the civil war the same ques-

SOME REMINISCENCES 129

tion came before the Supreme Court in the case
of Davis V. Gray, 16 Wall., 203, and it received
the same answer. Texas had made large land
grants to a railroad before the war, and after the
war the carpetbagger government of Texas at-
tempted to confiscate these lands, and ordered the
Governor of the State to make deeds to them.
The railroad filed a bill in the United States Court
praying that the Governor might be enjoined from
executing this unconstitutional law. The Gover-
nor set up the same defence, viz : that he was the
State of Texas and that the eleventh amendment
protected him from suit. The Circuit Court en-
joined the Governor, and, on appeal to the Su-
preme Court, it afHrmed the Circuit Court's
decree. I quote the following from the opinion of
the court (page 220) as follows:

A few remarks will be sufficient to dispose of the juris-
dictional objections of the appellant.

In Osborn v. The Bank of the United States these
things amongst others were decided :

"(i) A Circuit Court of the United States in a proper
case in equity may enjoin a State officer from executing a
State law in conflict with the constitution or a statute of
the United States, when such execution will violate the
rights of the complainant ;

"(2) Where the State is concerned the State should be
made a party if it could be done. That it cannot be done is
a sufficient reason for the omission to do it, and the court
may proceed to decide against the officers of the State in all
respects as if the State was a party to the record ;

I30 SOME REMINISCENCES

"(3) In deciding who are parties to the suit the court
will not look beyond the record. Making a State officer a
party does not make the State a party, although her law
may have prompted his action, and the State may stand
behind him as the real party in interest. A State can be
made a party only by shaping the bill expressly with that
view, as when individuals or corporations are intended to
be put in that relation to the case."

In the case of Poindexter v. Greenhow, 114 U.
S. R., 270, Poindexter had tendered the State of
Virginia's coupons in payment of her taxes. The
treasurer, obeying the State law that required him
to refuse the coupons, levied and seized Poindex-
ter's desk in obedience to the State law to sell it
and thereby make the taxes. Poindexter brought
an action of detinue against the State's treasurer to
recover his desk. The treasurer said he was the
State and protected from suit by the eleventh
amendment. The Supreme Court, following Os-
born V. The Bank, said that as the State was not
named on the record, the suit w^as not against the
State, and It took the desk from the treasurer and
restored It to Poindexter.

In the case of Allen v. B. & O. R. R. Co., 1 14
U. S. R., 311, the railroad had tendered the State's
coupons in payment of Its taxes due to the State
of Virginia. The State's officers were about to col-
lect the taxes In money by distress warrants in the
name of the State, when the railroad applied to the
Circuit Court of the United States to enjoin them.

SOME REMINISCENCES 131

They also said that they were the State and pro-
tected from suit by the eleventh amendment, but
the court, following Osborn v. The Bank, decided
that as the State was not named on the record, she
could not be considered a party to the suit. The
opinions in both of the last-mentioned cases were
delivered by Mr. Justice Stanley Matthews, and in
the last one, Allen v. B. & O. R. R., he says (p.
314) :

"The circumstances of this case bring it, so far as that
remedy is in question, fully within the principle firmly
established in this court by the decision in Osborn v. The
Bank of the United States, g Wheat., 739."

It may be possible to distinguish Ex parte Ayres
from these cases, but to do it one must have the
acuteness of the man in Hudibras.

"He could distinguish and divide
A hair 'twixt south and southwest side."

Nothing less will do the job. In Ex parte Ayres
Mr. Justice Stanley Matthews attempted to draw a
distinction between them, but to my mind he made
a most lamentable failure. He attempted to
found the distinction upon two grounds. The first
is that when the officer sued has no personal in-
terest in the suit, but the State is the only party
having a direct interest, she is to be considered the
real party sued, although she is not named on the
record. But all that had been considered by Chief

132 SOME REMINISCENCES

Justice Marshall in Osborn v. The Bank, and by
the Supreme Court in all of the cases following the
Osborn case, and, as stated by Justice Matthews
himself, in Allen v. B. & O. R. R., the principle
had become firmly established in the Supreme
Court that the State was never to be considered a
party to the cause unless she was named as a party
on the record.

In what respect did Osborn have more interest
in the cause than Ayres. Neither had any interest
in it. In each case the officer was simply executing
an order that his State had given him by a law that
was repugnant to the Constitution of the United
States.

In what respect was the State of Virginia more
interested in having Ayres bring the suit she had
ordered him to bring than Ohio had in having
Osborn bring the suit she had ordered him to
bring? I can see no difference in interest, and the
same may be said of each of the other cases men-
tioned. In none of them did the officers have any
personal interest. In all of them the State was the
only party having a direct Interest. Yet in all of
them the court had adhered to the rule laid down
in Osborn v. The Bank that the State was never
to be considered a party unless she was named as
such in the record. Justice Matthews's second
ground for distinguishing Ex parte Ayres from Os-
born V. The Bank and the other cases mentioned

SOME REMINISCENCES 133

was that In Ex parte Ayres the coupon holder was
seeking to force the State to comply with her con-
tract and to redeem the coupon. How he could
bring his mind to this conclusion Is simply Incon-
ceivable to me. The case was simply this: The
State ordered her Attorney-General, by an act of
her Legislature repugnant to the Constitution of
the United States, to sue a taxpayer who had
tendered her coupons In payment of his tax, and
who stood upon that tender, refusing to pay any-
thing else. The coupon holder aslced the United
States Court to forbid the Attorney-General to
bring that suit on the ground that the act requir-
ing him to bring It was unconstitutional. He did
not ask the court to go further and make the State
accept the coupon in payment of the tax. He
stopped with asking the court to keep the State's
officer off of him. How can that act be construed
Into an attempt to make the State pay the coupon ?
It is solely a self-defensive measure. It asks noth-
ing from the State. It asks simply and solely that
he be protected In that isolation to which he is en-
titled and that this officer be kept from molesting
him In a matter as to which he Is entitled to quiet
and rest. How that can be said to be an attempt
to force the State to pay her coupon Is more than
I can understand. The tax payer's position was
that he had done his whole duty and was entitled
to repose. It was nothing to him whether the

134 SOME REMINISCENCES

State got her taxes or whether she did not. But
she had no right to molest him. The gist of Jus-
tice Matthews's opinion on this point is contained
in the following extract (page 502). He says:

A bill in equity for the specific performance of the con-
tract against the State by name, it is admitted could not be
brought. * * * The converse of that proposition
must be equally true because it is contained in it; that is, a
bill, the object of which is by injunction, indirectly to com-
pel the specific performance of the contract by forbidding
those acts and doings which constitute breaches of the con-
tract, must also necessarily be a suit against the State. In
such a case, though the State be not nominally a party on
the record, if the defendants are its officers and agents
through whom alone it can act in doing and refusing to
do the things which constitute a breach of its contract, the
suit is still, in substance, though not in form, a suit against
the State.

When exactly those considerations were urged
upon Chief Justice Marshall in Osborn v. The
Bank, he came to exactly the opposite conclusion.
I quote from his opinion (page 846) as follows:

The bill is brought, it is said, for the purpose of pro-
tecting the bank in the exercise of a franchise granted by
a law of the United States, which franchise the State of
Ohio asserts a right to invade and is about to invade. It
prays the aid of the court to restrain the officers of the
State from executing the law. It is, then, a controversy
between the bank and the State of Ohio. The interest of
the State is direct and immediate, not consequential. The
process of the court, though not directed against the State

SOME REMINISCENCES 135

by name, acts directly upon it, by restraining its officers.
The process therefore is substantially, though not in form,
against the State, and the court ought not to proceed with-
out making the State a party. If this cannot be done, the
court cannot take jurisdiction.

The full pressure of this argument is felt, and the diffi-
culties it presents are acknowledged. The direct interest
of the State in the suit, as brought, is admitted ; and had
it been in the power of the bank to make it a party, per-
haps no decree ought to have been pronounced in the
cause, until the State was before the court. But this is
not in the power of the bank. The eleventh amendment
of the Constitution has exempted a State from the suits of
citizens of other States or aliens; and the very difficult
question is to be decided, whether in such a case the court
may act upon the agents employed by the State.

He then proceeded to announce the opinion of
the court that it might act upon them notwithstand-
ing that the State was the real party to be affected,
and all the other cases cited above did the same
thing.

What now Is to be said of Justice Matthews's
opinion that forbidding the officers of the State to
do things that would be breaches of the State's con-
tract is compelling the State to perform her con-
tract? It Is absolutely Impossible to reconcile this
with sound reason. When Justice Matthews
forbade the State's auditor in Allen v. B. & O.
R. R. to seize the railroad property for the
taxes the railroad owed and had tendered
coupons for, he was forbidding him to violate the

136 SOME REMINISCENCES

State's contract, but he was not requiring the State
to perform her contract. He was leaving the par-
ties just where he found them. He was requiring
the State to do nothing. He was leaving it op-
tional with her whether she would perform the
contract embodied in the coupon or whether she
would not. To say that that required her to per-
form that contract is, it seems to me, to confound
the most obvious distinction between things, and
is equivalent to saying that twice two is five instead
of four. To forbid Allen to seize the railroad
property after the tender of coupons was not to
require the State to perform her contract to re-
ceive the coupons in payment of taxes, and, when
that statement is made, all has been said that the
case admits of being said.

Justice Matthews's proposition ignores and dis-
regards the consideration upon which the eleventh
amendment rests. That amendment is founded
upon the proposition that it is beneath the dignity
of a sovereign State of this Union to be sued in a
United States Court. That proposition may be
one of little importance, but when the eleventh
amendment was adopted the State thought it of
sufficient importance to require that it be made a
part of the Constitution of the United States.
Now when Justice Matthews says that forbidding
an officer to trespass upon me after I have tendered
coupons is the same thing as suing the State and

SOME REMINISCENCES 137

forcing her to give me a receipt for my taxes and
to receive my coupons into her treasury, he is abso-
lutely ignoring the State's cherished exemption
from suit. He is saying that it is a mere trifle and
amounts to nothing and is not to be considered as
an element in the case. But the States consider it
a very great element in the case, and they will
never admit that forbidding an officer to collect
taxes by an unlawful proceeding is the same thing
as suing them on their contracts and forcing them
to perform those contracts.

These considerations are so obvious that, for
my part, I have always believed that the Supreme
Court was Homerized in making the decision it
made in Ex parte Ayres.

All through its history the Supreme Court had
been in the habit of declaring the law and seeing
all the people of the United States at once
adopt its declaration and base all further action
upon it. It had never conceived it to be
possible that anybody would refuse to acquiesce
in its decision when once made. But the Supreme
Court had never before tackled the people of Vir-
ginia. They are the most obstinate, bull-headed
people that ever lived when they think any one is
seeking to invade their rights. You may some-
times wheedle and cajole them, but you are always
going to have a lively time when you attempt to
drive them. It is like the question as to the best

138 SOME REMINISCENCES

way to lead a calf. If you put a rope around his
neck and try to lead him he pulls back and drags
you about in all sorts of ways. But if you tie the
rope around his hind leg and get behind him, you
can lead him along in a very satisfactory manner.
No doubt the Supreme Court was perfectly amazed
when it found out the controversy it had got on its
hands in this coupon matter, with its dockets filled
up each term with the coupon cases I carried there.
In one of these cases Mr. Justice Bradley, in de-
livering the opinion of the Court, said (135 U.
S. R., 721) :

If the influx of coupons should be so uncertain that
no safe calculation could be made on the subject, an
arrangement could probably be made with the coupon
holders for limiting the proportion of tax which would be
received in coupons. It Is certainly to be wished that
some arrangement may be adopted which will be satis-
factory to all the parties concerned, and relieve the courts
as well as the Commonwealth of Virginia, whose name
and history recall so many interesting associations, from all
further exhibitions of a controversy that has become a
vexation and a regret.

Throughout the whole of the controversy the
Richmond Dispatch, the leading daily newspaper
in the State of Virginia, was incessant in its at-
tacks upon the Supreme Court and the subordinate
Federal courts for their course in the matter. It
claimed that they were making decisions against
the State in direct violation of the eleventh amend-

SOME REMINISCENCES 139

merit; that they were a usurping judiciary, and
that the country should wake up and drive them
out of office before they deprived the people of all
of their liberties. There is no doubt that a consider-
able part of the nation was giving attention to this
clamor of the Richmond Dispatch, and that news-
papers in many parts of the country were taking
up and re-echoing its clamor. There is no body
of men on the face of the earth that keeps its ear
closer to the ground than the Supreme Court of
the United States, and it is always glad to hear
that the people approve of its actions and decisions.

When Judge Bond put Attorney-General Ayres
in jail the Dispatch went into conniption fits.
"What! put the attorney-general of a sovereign
State in jail! These usurping Federal judges
should be impeached and discharged in disgrace
from their offices." This was the staple of its
clamor.

Thinking that the court would be aroused to
resentment, I sent a copy of each of these papers
with the articles marked to each of the judges
every day. But the anticipated effect does not seem
to have been produced.

At any rate the court commenced to trim Ex
parte i^yres down almost from the day it was de-
cided, until on March 23, 1908, it decided Ex parte
Young, which in effect cuts away the last vestige
of Ex parte Ayres. The United States Circuit

140 SOME REMINISCENCES

Court of Minnesota put the Attorney-General of
Minnesota in jail for bringing a suit against a rail-
road that a statute of Minnesota commanded him
to bring for the purpose of putting that State's
confiscating rate law in effect, and on his applying
to the Supreme Court to discharge him, on the
authority of Ex parte Ayres, the Supreme Court
did not do a thing but tell him he might stay in
jail. And if Ex parte Young left anything of Ex
parte Ayres the recent Virginia rate case ends that.

However, the decision killed my case as dead as
Julius Caesar, and I told my clients they must settle
at once. The State did not realize how badly I
was hurt, and she had been so badly clubbed that
she was in a very good humor for a settlement.
A new settlement was made, which gave my clients
a great increase upon what the State had been offer-
ing them and this enormous controversy came to
an end.

I am very proud of the result. Unaided and
alone, after a contest of eight years, I had driven
the State of Virginia from her chosen position, a
thing that it took the Federal Government four
years to do, and it had to use a million of armed
men, and at the cost of oceans of blood and four
thousand millions of dollars.

The court ought never to have departed in the
smallest degree from the rule laid down by Chief
Justice Marshall in Osborn v. The Bank. That

SOME REMINISCENCES 141

wonderful man had looked over the whole field,
and with that remarkable prevision that nature had
endowed him with he had no doubt seen that the
greatest danger that threatened our institutions
was the peril of the State governments falling
under the control of men unwilling to be bound by
those eternal principles of fairness and justice that
rule in every government that hopes to endure,
and he had foreseen that it was necessary to give
such a construction to the Constitution of the
United States as would prevent the States baffling
justice by screening themselves behind their exemp-
tion from suit as sovereigns when arraigned before
the national tribunals of justice upon the charge
that they were seeking to evade the obligations of
the national Constitution. For that reason, no
doubt, he brought the court to adopt the principle
announced in Osborn v. The Bank. The history of
the past quarter of a century proves how far-seeing
and how wise the great Chief Justice was. The at-
tempts of the States to confiscate the property of
the railroads by cutting their rates down and by
other devices of robbery show how necessary it is
that the rule of Osborn v. The Bank should be
adhered to, and the Supreme Court, seeing the
dreadful blunder it made in the Ayres case, has
come back now in fact, if not in name, to the prin-
ciple announced by Marshall. The rule thought
out and announced by the great Chief Justice in

142 SOME REMINISCENCES

Osborn v. The Bank is the most important an-
nouncement ever made by him. With it in force,
the States can never evade their obligations under
the Constitution. With it abrogated they may go
on evading one obHgation after another until they
finally undermine and destroy the Constitution and
the Union. The recent confiscatory rate legisla-
tion fully illustrates the case.

The following is not very relevant, perhaps, but
I wish to relate it here, anyhow. It is well known
that Mr. Justice Horace Gray, of the Supreme
Court of the United States, was chief justice of
Massachusetts when he was appointed to the Su-
preme Court of the United States. At the John
Marshall centennial he came to Richmond, Vir-
ginia, and delivered an address on Judge Marshall.
Conversing with a friend of mine, he said, "You
know Judge Story was put into the Supreme Court
to curb Judge Marshall in his centralizing tenden-
cies. But he had not been there long before the
great Chief Justice laid his mighty hand upon his
head and made him his own." My friend said,
"Judge, that is a good thing to put in your address.
Do it." "Oh, no," responded Judge Gray, "there
are too many Storys living in Boston for me to put
that in my address."

Judge Bond told me a funny thing in connection
with the Ayres case. He said that one day Cham-
berlain, the restaurateur In Washington, came

SOME REMINISCENCES 143

over to Baltimore and asked him to come over to
Washington and dine with Henry Watterson,
editor of the Louisville Courier-Journal. Bond
accepted, though he did not know Watterson.
When he got there he found Watterson pretty
hilarious. Watterson put his arm around Bond's
shoulder and said, "Bond, I was always with you
in that Virginia fight, but did you not know that
Uncle Stanley would go back on you?" He al-
luded to Justice Stanley Matthews, and Bond said
he found out that Matthews had some sort of con-
nection by marriage with Watterson that caused
him to call Matthews "Uncle Stanley." Matthews
had delivered the first opinion of the Supreme
Court which hurled defiance and death at the State
of Virginia, and he delivered this last one undoing
all of Bond's work and letting the State completely
out of the difficulty.

Bond said he replied to Watterson, "No, how
could I know he would go back on me?"

"Because he has gone back on everybody he ever
had anything to do with. Did he not do so and so,
and so and so. Did he not preside over the con-
vention that nominated Greeley, and then vote for
Grant?"

Another Incident pertaining to this case is worth
recording I think. The State of Virginia paid
Hon. Roscoe Conkling, of New York, $10,000 to
argue It for her In the Supreme Court of the United

144 SOME REMINISCENCES

States. Conkling was very reserved and
haughty, and paid no more attention to me than
if I had been a poodle dog. The argument he
made before the court was on the level of a school-
boy's, and after he had been speaking about half
an hour without saying a word that was material,
and without mentioning the eleventh amendment,
which was the whole case, he said, "I believe that
is about all that is to be said," and he was about to
take his seat. But the Hon. John Randolph
Tucker, who was the State's other representative,
pulled Conkling's coat-tail and said in a stage whis-
per, "But you have said nothing about the eleventh
amendment. Discuss that" ; and he said, "Oh, yes.
And I forgot to mention that we rely upon the
eleventh amendment as a bar to the suit," and he
sat down. When I came to reply I did a thing that
the great man's worshippers considered sacrilege.
I said no one had undertaken to defend the consti-
tutionality of the Virginia act of assembly ordering
the suits to be brought against those who had ten-
dered coupons. "Of course," I said, "I do not
take the humorous argument that has been de-
livered here this morning seriously." Conkling
had argued that the act was constitutional and
thereupon I chuckled to myself, "I have got even
with him, for his insolence, anyhow."

Though not particularly relevant to anything

SOME REMINISCENCES 145

I have been talking about, I want to record here
the following: I lived in New York City, prac-
tising law there from 1880 to 1884, and I had a
very considerable practice there. I am still a mem-
ber of the New York bar and am still practising
my profession there. I have been frequently asked
what I think of the New York bar, and my answer
is always that Its most noticeable feature, with the
exception of a few individuals, is the fact that the
New York lawyer thinks all the law is in New
York. He thinks that the Legislature at Albany
passes all the statutory law that is made, and that
the Court of Appeals at Albany makes all the
judge-made law that is made.

I once met with a curious illustration of this.
They had three huge volumes published in 1875 by
Banks Brothers, called The Revised Statutes of
New York, which were in every lawyer's office and
were treated and considered as the authentic version
of their laws. I have no doubt they were perfectly
correct so far as New York law is concerned, at
any rate, I never heard of their accuracy in that
respect being questioned. But they undertook to
print the Constitution of the United States at the
beginning of the first volume, and gave the thir-
teenth amendment to the Constitution in the fol-
lowing language :

146 SOME REMINISCENCES

ARTICLE XIII.

Section i. Slavery being incompatible with a free
government, is forever prohibited in the United States;
and involuntary servitude shall be permitted only as a
punishment for crime.

Now the thirteenth amendment really reads as
follows :

Neither slavery nor involuntary servitude, except
as a punishment for crime, whereof the party shall have
been duly convicted, shall exist within the United States
or any place subject to their jurisdiction.

A trifle of this sort is a matter of no moment
to a New York lawyer, since it concerned the laws
of barbarians and not those of the city of Rome.

As I have been reviewing the transactions of the
Supreme Court of the United States so much at
large, I think the following, for the truth of which
I can vouch, though I am not at liberty to state my
authority, should be recorded here. The case of
Ex parte McArdle, from Mississippi, 7 Wallace,
506, an appeal In a habeas corpus case, brought be-
fore the Supreme Court In 1868 the constitution-
ality of the reconstruction acts of Congress, those
Pandora boxes from which such untold wretched-
ness and misery to the people of the Southern States
issued. The case was argued and submitted, and
the court decided by a vote of five justices to four

SOME REMINISCENCES 147

that the laws were repugnant to the Constitution
of the United States. Amongst the justices voting
to declare the laws unconstitutional was Mr. Jus-
tice David Davis, of Illinois. Mr. Justice Field
was appointed to write the opinion of the court.
He wrote it and brought it before the Saturday
conference, and read it, where it was approved of
by five justices. It was to have been delivered and
handed down on the next Monday. Meanwhile,
information had got out that the court was going
to destroy all of these odious laws on the coming
Monday, and the radical partisans in Congress had
introduced a bill to take from the Supreme Court
jurisdiction to hear appeals in habeas corpus cases.
A motion was made by one of the four justices,
after the opinion had been read, to postpone the
delivery of the opinion from the following Monday
to the next Monday afterward, and upon that mo-
tion Mr. Justice Davis quitted his four associates
and voted with his four adversaries, making five
justices for the postponement, and that was accord-
ingly ordered. In the meantime, the radicals
rushed their bill through Congress, and when the
Supreme Court met on the Monday to which de-
livery of the opinion was postponed it found its
authority to decide the case taken away from it.
By this sort of juggling the Southern States were
forced to undergo the awful tortures of reconstruc-
tion to which the solid South is by far more due

148 SOME REMINISCENCES

than to the war. That noble old Roman, Mr.
Justice Grier, filed this solemn protest against the
proceeding:

In re McArdle, Protest of Mr. Justice Grier.

This case was fully argued in the beginning of this
month. It is a case that involves the liberty and rights
not only of the appellant, but of millions of our fellow-
citizens. The country and the parties had a right to ex-
pect that it would receive the immediate and solemn at-
tention of this court. By the postponement of the case
we shall subject ourselves, whether justly or unjustly, to
the imputation that we have evaded the performance
of a duty imposed upon us by the Constitution and waited
for legislation to interpose to supercede our action and re-
lieve us from our responsibility. I am not willing to be a
partaker either of the eulogy or opprobrium that may
follow and can only say: Pudet haec opprobria nobis, et
diet potuisse et non poiuisse repelli.

R. C. Grier.

I am of the same opinion with my brother Grier and
unite in his protest.

Field, J.

As I have said, I am not at Hberty to say how
I know these facts, but I know them absolutely to
be facts, and there are a number of other men now
living who also know them to be facts.

In the summer of 1888 my relations with my
English clients required me to go to London, and
I took my wife with me. She was then a very
beautiful young woman of about twenty-eight or

SOME REMINISCENCES 149

twenty-nine. When crossing the ocean her
steamer rug disappeared and she could not find it
high or low. She reported the fact to me, and
said, "I must have It produced." I said, "My
dear, give the thing up. If I start after it I am
going to run it down to the bottom, and that may
raise a devil of a racket on this boat. Let the
thing drop, and when we get to London I will buy
you another one worth two of that." But, woman-
like, she was not going to lose a steamer robe if she
could help it, and so she demanded that I should
go to the captain about it. "Very well," said I,
"you see now what is going to happen." I started
out to find the captain, and was shown him up on
the bridge of the ship in the act of taking observa-
tions of the sun with a glass. I went up the stair-
way to him, and said, "Captain, some one has stolen
my wife's steamer robe, and I come to you to have
it looked up." He turned on me in utter amaze-
ment that I should have had the audacity to inter-
rupt him in the important function that he was
engaged in, and said, "What do you mean by com-
ing up here and interrupting me when I am taking
observations?" I said, "I mean just what I have
said. I want you to have my wife's steamer robe
hunted up." "Go down from here," he said.
"I'll have your wife's robe looked up." "All
right," said I, "that is all I want."

In a short time the robe was produced.

150 SOME REMINISCENCES

"Come," said I to two friends, "let's go to the
ward room and take a drink on that. That's the
way to hold the arbitrary tyrants up." We went
to the ward room, and all three of us ordered our
drinks. I noticed that the bar-keeper put the
drinks of my friends before them, but put nothing
before me. "Why, what's the matter?" I said.
"Where is my drink?" "The captain has given
orders," he replied, "that you are not to be served
anything more on this ship." "The devil he has !"
said I. "He thinks I was drunk when I called on
him to produce my wife's robe. I was no more
drunk than he was. But we will see about this."

When we went out of the ward room I asked
one of my friends to go back and buy me a quart
bottle of whiskey, which he did, and I took it to
my stateroom and had a drink whenever I wanted
it.

On the ship there was a man who forced himself
on my acquaintance, giving the name of Thompson,
and saying that Mr. Cleveland had made him our
consul at Liverpool, where he had served all
through his first administration. I had no means
of finding out on the ship whether this was true or
not, but the man said he had seen me often in New
York at the New York Hotel, where I stayed while
residing in New York. I did not remember him
at all, but he knew all about me. He introduced
me to a friend of his, a Russian count named Ga-

SOME REMINISCENCES 151

bousky, or something of that sort. In some way the
two got acquainted with my wife, and they were
most persistent in their attentions to us all the rest
of the way. I had it in mind to try and organize a
company while in London to develop the iron ores
of Virginia, which are very valuable, and I men-
tioned that fact to Thompson or the Count. Next
morning, after arriving at London, the Count ap-
peared at the Langham Hotel, where I was stay-
ing, with a fat Irish friend, who insisted that I
should come to his apartments in Piccadilly that
night, when he would have Lord Idisleigh to meet
me and his lordship would get me up the ore com-
pany in a jiffy. I was a little suspicious, but I went.
I found the Irishman and a friend of his playing a
simple game of cards with a shilling for the stake.
They wanted me to take a hanci while we were
waiting for his lordship, which I did. Soon a
Mr. Harrison arrived with his lordship's regrets
that he was unable to come that night. Harrison
at once took a hand in the game, and commenced
raising the stake, and continued until he had made
the bet a pound. Before you could say Jack
Robinson I had lost $30. I saw I had been
buncoed, and I put my hand down and said they
must excuse me, that I was going to leave. They
raised a great outcry, but I got up and put my chair,
a stout oaken one, in front of me and commenced
backing to the door. They looked as though they

152 SOME REMINISCENCES

were going to spring on me. I am a pretty stout
man and can hold my own fairly well in a personal
encounter. They looked me over and saw that
somebody was going to get his neck broken if they
advanced on me and so they refrained. I backed
to the door, turned, and I scampered to the street
about as fast as any man ever did.

Upon the steamer we made the acquaintance of
a gentleman named Schoen, from Pittsburg, who
was going abroad with his two young daughters.
Through us, our friends the Count and Thompson
got acquainted with the Schoens. After staying
in London a week or two myself and wife went
over to Paris. Shopping there one day we ran
upon the Schoens. Schoen asked me to leave the
ladies shopping and go with him to a restaurant;
that he had something to consult me about. He
then told me that he had met with the Count in
Paris, who had made himself very charming to
them, and in the end had taken him to a musical
festival of some kind, where the Count met with a
very agreeable acquaintance of his to whom he In-
troduced Schoen. That In the course of the even-
ing Schoen had been In some way induced to take
from his Inside vest pocket his pocket-book in
which he had $1,500; that when he returned to
his hotel he looked into his pocket-book and found
there was nothing there but a piece of a New York
Herald. He wanted me to advise with him

SOME REMINISCENCES 153

whether he should have the Count arrested. He
said he had caused a detective to search his room
and found nothing there but a pair of old soiled
socks. I told him not to think of arresting him;
that the authorities would keep him there to tes-
tify against the Count and no one could tell when
he would get away. He took my advice and pock-
eted his loss.

CHAPTER IV

THE TRUSTS

The beginning of public alarm in the matter of
trusts was about 1890, though as late as 1897 I
had not come to share in that alarm. I thought
the judicial power if properly applied by persons
having a correct idea of the common law principles
applicable to the case was entirely adequate to keep-
ing the trusts within their proper sphere, in which
they would be a source of public benefit rather than
harm. I am of that opinion still in spite of all
that the trusts have been permitted to do that has
so aroused public resentment. In the winter and
spring of 1897 I prepared a pamphlet upon this
subject in which I set out my views of it. Just as
I was about to send it to the press the decision of
the Supreme Court of the United States in the case
of United States v. Trans-Missouri Association,
166 U. S. R., 290, was announced. This was the
case in which the court announced that it must en-
force the Sherman anti-trust act just as it was writ-
ten and break up "every" agreement that put any
restraint upon interstate commerce. I had never
heard that any such case was pending before
the Supreme Court, and the decision when

SOME REMINISCENCES 155

announced was a great surprise to me. I at once
saw that it totally ignored, if it did not run directly
counter to, the views 1 had elaborated with so
much pains and labor in my pamphlet. I went to
Washington and read all the briefs of counsel that
had been used in the case, and I saw there was no
suggestion of the views I entertained in any of
them. That was in the spring of 1897. Another
case was to be argued in the Supreme Court in the
following fall, which is now United States v. Joint
Traffic Association, 171 U. S. R., 505, which in-
volved precisely the same questions as had been
raised in United States v. Trans-Missouri Associa-
tion just decided. So I determined to publish my
pamphlet just as I had prepared it, in the hope
that its presentation of the case might have some
influence in the decision of the case to be argued in
the coming fall. I accordingly published it in
April, 1897, and immediately sent a copy of it to
each judge of the Supreme Court, and I also at
once sent a copy of it to each of the counsel who
were to argue the case coming on in the fall,
amongst whom was Mr. E. J. Phelps, Minister to
England, who had argued the case of United
States V. Trans-Missouri Association just then de-
cided, as before stated.

At that time, what I am going hereafter to treat
as the harmful trusts, that is, the enormously rich
corporations that crush out all opposition to them-

156 SOME REMINISCENCES

selves, had done very little to alarm the public and
to arouse the resentment against them that is so
prevalent now. Accordingly, my pamphlet was
principally devoted to a discussion of agreements
between a number of persons, their nature, and
their proper limitations.

The theory I put forward, briefly stated, was
this, in substance: If an act was good and legiti-
mate when done by one person that act could not
become bad and unlawful merely because it was
done by a number of persons Instead of one person.
That was the generally accepted theory at that
time, but it cannot be denied that the tendency of
the decisions of the courts since has been the other
way. See Pickett v. Walsh, 78 No. E. Rep., 753,
a decision of the Supreme Court of Massachusetts
as late as October, 1906. I still think, however,
that when the subject is properly treated it will be
held that the performance of the act by numbers
instead of by one is innocent if there be no evil in-
tent and the object be in good faith to promote the
interests of those participating in it. That an act
must be judged by the nature of the act and not by
the number of persons concurring and acting to-
gether in performing it; that as one person could
lawfully and properly compete in business with
another person even to the point of wholly de-
stroying the latter by fair competition, several per-
sons acting together could properly do the same

SOME REMINISCENCES 157

thing, and, when co-operatuig thus, they could
wholly destroy their rival in the business provided
they did it by fair competition, however exacting
the competition might become; that though one or
inany co-operating together might compete with
his or their rival in business even to his or their
rival's destruction, so long as what they were en-
gaged in was really fair competition, yet our laws
forbade one or many from attempting the destruc-
tion of a person, even though a rival in business,
from ill will or malice toward that person. I illus-
trated the distinction by quoting a decision of the
Court of King's Bench delivered by Lord Chief
Justice Holt two hundred years ago to the follow-
ing effect:

The plaintiff complained of the destruction of
his "decoy" by the defendant having discharged
guns so near to it as to drive away the ducks that
defendant shot for a living. It appeared that the
defendant had no occasion to shoot guns near the
plaintiff, but did it simply and alone out of malice
toward the plaintiff, and to do him a wanton in-
JU17. The court held that the defendant had done
the plaintiff an actionable wrong by that conduct
for which he was liable to the plaintiff in damages.
It is obvious, according to this decision, that pur-
pose and intention in performing the act become
decisive in such a case.

I also illustrated the proposition by stating the

158 SOME REMINISCENCES

case of Mogul Steamship Company v. McGregor,
a decision of the House of Lords of England
(App. Cas., 1 89 1, p. 25) as follows:

Several lines of steamships traded to China all
the year round. The trade was unprofitable except
in what is called the "tea season," when it was very
profitable. The losses of the year were made up
and a profit gained by the freights on tea in "tea
season." Another line of steamers traded to Aus-
tralia all the year until "tea season" came on, when
its steamers were diverted to Hankow to get a part
of the profitable tea trade. The lines which traded
to China all the year round entered, therefore, into
an agreement called a conference, by which they
agreed to divide out freights amongst themselves,
and they published a notice to all merchants in
China that if they would ship everything all the
year round by one of the conference lines, they
would be allowed a rebate upon all freights at the
end of the year of five per cent. ; and whenever
one of the steamers of the Australian line came to
Hankow the conference had a steamer there to un-
derbid it on freights; so that whatever the Aus-
tralian got caused it a loss. Thereupon the Aus-
tralian line applied to the English courts for pro-
tection, upon the ground that this combination of
many against one was contrary to the principles of
our laws. The decision of the highest court in
England, the House of Lords, was that the agree-

SOME REMINISCENCES 159

ment was a perfectly good and valid one, upon the
ground that no malicious and wanton attack was
being made upon the Australian but that the con-
ference was simply seeking to advance its own in-
terests by fair and open competition.

I quoted from the judges as follows. Lord
Justice Field said :

My Lords, I think that this appeal may be decided upon
the principles laid down by Holt, C. J., as far back as
the case of Keble v. Hickeringill, il Md. 74, and note
to Canington v. Taylor, 11 East, 514. In that case the
plaintiff complained of the destruction of his "decoy" by
the defendant having discharged guns near to it and so
driven away the wild fowl, with the intention and effect of
the consequent injury to his trade. Upon the trial a ver-
dict passed for the plaintiff, but in arrest of judgment it
was alleged that the declaration did not disclose any
cause of action. Holt, C. J., however, held that the
action, although new in instance, was not new in reason or
principle, and well lay, for he said that the use of a
"decoy" was a lawful trade, and that he who hinders an-
other in his trade or livelihood is liable to an action if the
injur}^ is caused by a violent or malicious act. "Suppose,
for instance," he said, "the defendant had shot in his own
ground, if he had occasion to shoot, it would have been one
thing, but to shoot on purpose to damage the plaintiff is
another thing and a wrong. But," he added, "if the de-
fendant, using the same employment as the plaintiff," had
set up another decoy so near as to spoil the plaintiff's cus-
tom, no action would lie, because the defendant had "as
much liberty to make use of a decoy" as the plaintiff. In
support of this view he referred to earlier authorities. In
one of them it had been held that by the setting up of a

i6o SOME REMINISCENCES

new school to the damage of an ancient one by alluring
the scholars, no action would lie, although it would have
been otherwise if the scholars had been driven away by
violence or threats.

It follows, therefore, from this authority and is un-
doubted law, not only that it is not every act causing
damage to another in his trade, nor even every intentional
act of such damage which is actionable, but also that acts
done by a trader in the lawful way of his business,
although by the necessary results of effective competition
interfering injuriously with the trade of another, are not
the subject of any action.

Of course it is otherwise as pointed out by Lord Holt,
if the acts complained of, although done in the way and
under the guise of competition or other lawful right are
in themselves violent or purely malicious, or have for
their ultimate object injury to another from ill will to
him and not the pursuit of lawful rights.

The House of Lords held the conference to
be a lawful one. As appears from the quotation
from Lord Justice Field's opinion, purpose and in-
tention were the pivotal facts In the case.

I further quoted from several other of the judges
to the same purport and effect as Lord Justice
Field's opinion and I said that there was the test
In all cases. If the combination Imposed no more
than a reasonable restraint upon trade and aimed
In good faith at bettering the condition of the par-
ties to It, It was a good and lawful combination,
however many might be the parties to It. But If
the combination put an unreasonable restraint upon

SOME REMINISCENCES i6i

trade or aimed at doing some person a wilful and
malicious Injury It was a bad combination and con-
demned by our laws. The first was competition
though It destroyed the rival. The second was not
competition, but wanton Injury to another. All
men then, I said, had a right to make any combi-
nation or agreement which put no unreasonable
restraint upon trade, and was not Intended to
Inflict a wanton injury upon another, if the agree-
ment aimed in good faith at bettering the con-
dition of the parties to it. But no man had
a right to form a combination which put an
unreasonable restraint upon trade or that aimed
at inflicting a wanton or malicious injury upon
another. Freedom to make such lawful con-
tracts was, then, I said, of the very essence of
citizenship and that "liberty" which is guaran-
teed to the citizen against State action by the
fourteenth amendment, which forbids a State
to deprive any person of life, liberty, or property
without due process of law; and against Con-
gressional action by the fifth amendment to the
Constitution of the United States, which forbids
Congress to deprive persons of life, liberty, or
property without due process of law. This, I said,
was the test that should be applied in the argu-
ment that was to come on In the fall In the case of
United States v. Joint Traffic Association. If the
agreement between the railroads that was attacked

II

i62 SOME REMINISCENCES

In that case was no more than a reasonable re-
straint upon trade and was one In which the rail-
roads aimed in good faith at bettering their own
condition and had no purpose to do a wanton In-
jury to another, the agreement was one in har-
mony with the spirit and essence of our laws, and
protected from hostile Congressional action by the
fifth amendment — as one of the "liberties" guar-
anteed to the citizen by the Constitution, and If
the act really Intended to forbid "every" contract
that restrained trade It was void, as under the
modern law reasonable contracts In restraint of
trade may be made, and the right to make them
is one of the "liberties" guaranteed to the citizen
by the Constitution of the United States. The
trusts, I insisted, were to be viewed and treated
from this standpoint. Allgeyer v. Louisiana, 165
U. S. R., 578; Lochner v. New York, 198 U. S.
R., 45.

Without making any sort of acknowledgment
to me, Mr. E. J. Phelps took my ideas from my
pamphlet and Incorporated them, without my
knowledge, in the brief that he presented to the
Supreme Court in the case of United States v. Joint
Traffic Association already spoken of. Mr.
Phelps is now dead and cannot speak for himself,
and this Is such a serious charge that I feel com-
pelled to quote from his brief In support of the
charge. He says at pp. 38, 39: "A just freedom

SOME REMINISCENCES 163

of contract in lawful business is one of the most
important rights reserved to the citizen under the
general term of 'liberty,' for all human industry
depends upon such freedom for its fair reward."
We had heard nothing of that in the preceding
case of United States v. Trans-Missouri Associa-
tion, although Mr. Phelps was one of the counsel
who argued it and filed a brief in it, and that was
one of the principal points that I had written my
pamphlet to establish. On page 18 he said:

In the anti-trust act the plain object is to reach and put
down mischievous trusts in restraint of trade and monop-
olies.

We had heard nothing of that in the previous
argument and that was the principal thing that
I had written my pamphlet to prove. On page 43
he says :

The question in the present case is whether the agree-
ment here under consideration is one that may be pro-
hibited by legislation, without infringing the freedom
of contract and the right of property which the Constitu-
tion declares and protects.

On page 57 he says:

The considerations that are thus seen to attend and
control the discussion of the subject conduct by in-
evitable logic to this conclusion : The true test of the
constitutionality of a law ivhich abridges the freedom of
contract must necessarily be found in the reasonableness

1 64 SOME REMINISCENCES

and justice of the contract abridged. The power of the
legislature to prevent unjust and mischievous contracts
where the public welfare requires it, must be admitted.
The constitutional prohibition against the deprivation of
liberty and property does not prohibit such a law, because
the freedom to make contracts of that character is not a
part of the liberty of the citizen, nor is it a right of prop-
erty. But when the contract which a statute undertakes to
forbid is not unjust or unreasonable, and is one that the
general principles of law and morality sanction, and
much more when it is seen to be necessary to the lawful
enjoyment of lawful property, then the constitutional
prohibition designated as a protection against precisely such
legislation, is directly encountered.* * * This, then, must
be the criterion: Is the contract sought to be pro-
hibited one that by the general principles of law and jus-
tice it is the right of the party to make\ or is it unjust, un-
reasonable and mischievous and therefore unlawful?

The italics are Mr. Phelps's.

Almost all of Mr. Phelps's brief is devoted to
establishing these propositions, although there was
no suggestion of them in his argument of the pre-
ceding case, and these are the Identical propositions
that my pamphlet was written to establish. Mr.
Phelps says of these propositions at p. 58:

This point was not made on the argument of the Trans-
Missouri case because no such construction of the act was
anticipated by counsel, nor was it considered by the court,
since it is an unvarying rule that no objection to the con-
stitutionality of a law will be considered unless raised by
the party affected.

SOME REMINISCENCES 165

I think it would have been far more candid in
Mr. Phelps if he had said the points were not
made on the preceding argument because he had
never then seen Mr. Royall's pamphlet, and as to
what he says of the court not considering the con-
stitutionality of a law unless raised by counsel, I
never heard of that rule before. On the contrary,
it is the doctrine of the court that the unconstitu-
tionality of a law is a jurisdictional question (Ex
parte Yarborough, no U. S. R., 651), and a
further doctrine is that the court will always raise
a jurisdictional question itself. (M. C. & L. Ry.
•1'. Swan, III U. S. R., 379.)

When the court came to decide the case it gave
this stinging rebul<.e to Mr. Phelps :

Regarding the two agreements as alike in their main
and material features, we are brought to an examination
of the question of the constitutionality of the act, con-
strued as it has been in the Trans-Missouri case. It is
worthy of remark that this question was never raised or
hinted at upon the argument of that case, although, if the
respondent's present contention be sound it would have
furnished a conclusive objection to the enforcement of the
act as construed. The fact that not one of the many
astute and able counsel for the transportation companies
in that case raised an objection of so conclusive a char-
acter, if well founded, is strong evidence that the reasons
showing the invalidity of the act as construed do not lie
upon the surface and were not then apparent to those
counsel.

i66 SOME REMINISCENCES

It looks as If the court had read the pamphlet
and saw through the whole transaction.

If Mr. Phelps, instead of pirating my pamphlet,
had conferred with me about the best way of put-
ting my views before the court, he might have won
his case, for the court, when it came to decide the
case, yielded in great part to the argument of the
pamphlet, but It was held that the power of Con-
gress to regulate commerce among the States over-
rode even the guaranteed "liberty" of the citizen
to make Innocent contracts. That, however, if
properly treated could have been got out of the
way. The decision is of vast importance in this
controversy as illustrating the unbounded power of
Congress in the matter of regulating Interstate
commerce. But the point I made as the means of
regulating the trusts has never yet been passed on
by the Supreme Court and it still remains to be ad-
judicated, and I have an abiding confidence that in
view of the absolute necessity for an abridgment
of the Sherman law, as I am going to show farther
on, that If a case were got properly before the
Supreme Court without Mr. Phelps's botches of
the argument, a modification of previous doctrines
that would give relief would be secured.

It must not be supposed that I have digressed
Into this Phelps incident to glorify myself and en-
deavor to show that I first thought this matter out
and placed it upon its true foundation. That was

SOME REMINISCENCES 167

far from my purpose. I have gone Into It In order
that I may bring out plainly and distinctly propo-
sitions for which I shall contend when I come to
discuss the subject more In detail.

Notwithstanding the fact that the trusts have so
outrageously abused their rights and privileges
since my pamphlet was published, I adhere to all
that was said In It, and I still submit that the lead-
ing Ideas of that pamphlet contain the true lines
of the trusts' rights and the true suggestions of
how they should be controlled so as to render them
harmless to the people, while preserving to them
all of their just rights.

There Is one Incidental matter, however, that
should be understood here. Purpose and intention
are made by my pamphlet the criterion of whether
an act is good or bad, and the decision of the
House of Lords In the Mogul Steamship case was
accepted by the world as an endorsement of that
proposition. But In a few years after the Mogul
Steamship case was decided the House of Lords
decided the case of Allen v. Flood (App. Cas.,
1898, p. 74), which seemed to overrule the Mo-
gul case, and It threw the whole subject again Into
confusion. The decision In this case was that pur-
pose and Intention were of no consequence In de-
termining whether an act was good or bad. This
decision produced consternation amongst those
who had to deal with this subject, and It gave rise

i68 SOME REMINISCENCES

to the sharpest and most hostile criticism. The
profession seems to regard It as overturned by the
subsequent case of Quinn v. Letham (App. Cas.,
1901, p. 534), which Is regarded as re-establishing
the doctrine of the Mogul Steamship case, and the
still subsequent case of GIblln v. The National
Union (1903, 2 K. B., 600) seems to regard the
doctrine of the Mogul case as the law.

But the American courts seem unanimously dis-
posed to repudiate Allen v. Flood and to follow
the Mogul case. Allen v. Flood was distinctly
repudiated by the Supreme Court of Illinois in
Doremus v. Henessey (43 L. R. A., 797), by
the Supreme Court of Wisconsin In State v. Dur-
ner (62 L. R. A., 744), by the Supreme Court of
Massachusetts in Plant v. Woods (51 L. R. A.,
339. See Gray v. Building Council, 63 L. R. A.,
758), by the Supreme Court of Georgia In Em-
ploying Club V. De Brosser Co. (69 L. R. A.,
95), and the doctrine that a malicious or evil in-
tent will make an act unlawful when it might other-
wise be lawful Is sanctioned by many of the State
courts and by the Supreme Court of the United
States In Angle v. St. P. R. R., 151 U. S. R., i.

So that I think I can fairly say that it Is the
common law of this country that if an act Is
clothed with a good Intent It may be a lawful act,
and yet if It be done with an evil or malicious In-
tent it may become an unlawful act; and this is a

SOME REMINISCENCES 169

point to be borne carefully in mind while consid-
ering what follows.

I come now to deal with the case of enormously
rich and powerful corporations which crush out all
opposition to themselves by the use of their brute
power. These are the trusts which have so mad-
dened the people, and these are the trusts that it
should be the earnest purpose of all of our au-
thorities to control and force to operate within
their legitimate lines.

The thing that the public has a right to com-
plain of in the action of these rich corporations is
their giving their goods away or selling them be-
low cost, which is pro tanto the same thing, for the
purpose of destroying a weak rival and driving
him out of business. No doubt every citizen can
point, in his own experience, to cases of this kind
that have come under his personal observation. I
have seen many cases of it. Two or three years
back a corporation was organized where, in part, I
live, to sell and carry petroleum oil around in the
cities of Manchester and Richmond to customers.
As soon as the company had established itself and
was really beginning to do business it, of course, at-
tracted the attention of a great oil company. This
put it under a regular and thorough system of
espionage. It had detectives to follow the first
named company's wagons and find out just where
it sold oil. Then it sent its own wagons around

I70 SOME REMINISCENCES

to those parties and offered them oil always far
below the other's prices, and it kept this up until
the first-named company saw it would certainly be
destroyed, when it sold out to the other oil com-
pany at what it could get. Where I live is one of
a great tobacco company's favored regions. I
have seen processes like that above described put
into operation in this territory by that company
until it made the blood of every self-respecting citi-
zen boil with indignation.

I have known attempts to be made to defend
this course of action in these rich corporations.
Their advocates have said. May a man not give
away what is his own? Shall there not be bargain
counters where the merchant may sell his old stock
at what he can get? May a man not give his goods
away to advertise his business? Undoubtedly all
of these things may be done when the act is per-
formed for the purpose named. But this is the
point where the purpose and intent so strongly
dwelt on heretofore come into play. When a
man gives his goods away because he is a charitable
man, or has a bargain counter to sell off his old
stock, or sells his goods below cost to advertise
them, that is one thing. When he gives his goods
away or sells them below cost for the purpose of
destroying his rival and driving him out of busi-
ness, that is a very different thing. They are dif-
ferent by reason of the purpose and intent. The

SOME REMINISCENCES 171

first act is perfectly legitimate and proper, the
second is illegitimate, unfair, unreasonable, and
opposed to the elementary principles of our laws
which command that while you live you shall let
live.

A combination of persons or a very rich cor-
poration while confining itself to fair and legiti-
mate competition, has a right to make all the
money it can make, and the more it makes the bet-
ter it is for society. Our rich men are our strength.
They furnish the capital for the new and great
enterprises that help every one and make the coun-
try strong and great. It is for the interest of the
public to see men grow as rich, in a fair way, as
it is possible for them to become. But giving
goods away for the purpose of destroying a rival
is not fair competition. It is not competition at all.
It is the exercise of brute force for an unworthy ob-
ject. There is no such thing as "competition" un-
less both competitors sell their goods for more than
they cost. It is not a matter of much moment how
much is added to the cost. One may be satisfied
with a small profit and another may want a larger
one. But the goods must be sold at something
more than the cost or the transaction is not busi-
ness and competition, unless in the excepted cases
of selling off old stock or in good faith advertising
the business.

At a meeting of the American Bar Association

172 SOME REMINISCENCES

at Hot Springs, Virginia, in 1903, I presented a
paper in which I pointed out these considerations
(see Report of American Bar Association for
1903, p. 27), and I urged the Association to take
the matter up and throw the powerful weight of its
endorsement in favor of united action to force a
discontinuance of this practice. If the Association
had taken the subject up I have no doubt the coun-
try would have got relief before this time. But
the Association seemed indifferent to the matter and
nothing came of it. Perhaps it contained too many
"trust" lawyers. This, however, is the objective
point. This is the citadel to be assailed. The evil
that has grown up In the country is the practice
of the rich and powerful corporations in giving
their goods away to destroy a weak rival, and that
is the practice to be broken up. When we find a
way to put an effectual ending to that practice we
shall cure the trust evil. Until we do that the
country will suffer from the trust evil while it
grows worse and worse, if it does not, in the end,
swamp our civilization. To cure the evil we must
look at it from the standpoint of the common law,
that is from the standpoint of the nature of things.
In the preceding discussion I have treated the
common law view of the subject and shown that
the common law will not tolerate a man doing an
act injurious to another when he is merely and
simply animated by a malicious purpose to injure

SOME REMINISCENCES 173

that other. The word "malice" is a word of very
broad signification in the law. An act to be ma-
licious need not be inspired by personal ill will or
hatred. It is enough, in the eyes of the law, to
make it malicious if it is one taken in wanton or
reckless disregard of another man's rights. The
legal definition of malice made by Mr. Justice Bay-
ley in Bromage v. Prosser (4 B. & C, 255) is uni-
versally accepted as the correct definition of it.
"Malice," said he, "in common acceptance means
ill will against a person, but in its legal sense it
means a wrongful act done intentionally, without
just cause or excuse." Every such act as that is
in the eye of the law malicious.

Now, for the great trusts to sell their goods in
the way of business at a very small profit is com-
petition with a rival. But for them to give their
goods away, or sell them below cost or at such a
trifling advance over cost as to be in effect selling
them at cost for the purpose and with the intent
of destroying that rival and driving him out of
business is not competition, but the doing of a
"wrongful act intentionally without just cause or
excuse" and therefore malicious in the eye of the
law, for the act cannot benefit them and can only
harm the rival.

It is answered to this that they look for a benefit
when they shall have driven the rival out of busi-
ness. But the benefit is not the direct result of the

174 SOME REMINISCENCES

act, but only the indirect and remote result of It.
The direct result is the destruction of the rival,
and any benefit that may come to them will be the
result of other acts done after the rival is destroyed.
It is in effect the principle discussed by the Su-
preme Court of the United States in the E. C.
Knight case and the Hopkins case, where the court
points out that the restraint upon commerce in
those cases is not the direct effect, but only the in-
direct effect of the agreements, and therefore the
agreements were not within the meaning of the
act of Congress that denounces "agreements in re-
straint of trade."

The act is therefore wrongful, because though
an act they would have a right to perform if done
with a worthy intent, it is an act injurious to an-
other and done with the purpose and intention of
injuring that other and of no sort of benefit to the
actor. It measures up exactly to Lord Holt's
duck case, which contains the whole law of com-
petition. Nothing has been added to the discus-
sion since Lord Holt decided that case, and the
doctrine he announced has stood like a granite wall
ever since he announced it. And that doctrine is
that an act may be good and lawful when done
with an honest intent and may yet be bad and un-
lawful when done with a dishonest intent which is
malice in the eye of the law. The Supreme Court
of Massachusetts has very recently come very near

SOME REMINISCENCES 175

to endorsing this idea, if it has not actually done
so, in the case of Pickett v. Walsh, 78 No. E.
Rep., p. 753, decided in October, 1906.

It will now be seen why I dwelt with so much
emphasis upon the importance of purpose and in-
tention. It is the crux of the case. When the trust
gives its goods away as an honest gift, made in
good faith, as a gift, it is within its plain right.
When it sells them below cost in good faith to ad-
vertise its goods it is within its plain rights. But
w^hen it gives them away or sells them below cost
with the pui-pose and intention of destroying its
weak rival and driving him out of business it is not
within its rights, it is trespassing upon its rival's
rights, and it is doing that rival a common law in-
jury and a wrong, which the courts ought to take
cognizance of. My pamphlet of 1897 put the case
correctly then in saying parties had a right to do
anything intended in good faith to be for their own
benefit, but that they had no right to do any act in-
spired by malice toward another person; and that
word "malice" covers the whole ground when it is
understood in its legal and not its popular sense. It
means that no man has a right to do an act not in-
tended to advance his own interests, but simply to
cause a wanton injury to another. That in the eye
of the law is a malicious injury to that other.

But whether I am right about this or not, there
can be no question about its being a proper subject

176 SOME REMINISCENCES

for legislation. If it is not a wrong at common
law it is certainly a matter that the legislative
power can make a wrong and provide redress for.
To provide effectual legislative redress there must
be legislation by both Congress and the States.
The States are powerless to deal with interstate
commerce and Congress is powerless to deal with
intrastate commerce. The case requires, therefore,
State legislation to bring to an end the wrongful
conduct of the trust that is wholly within the
boundaries of a State. It also requires Congres-
sional legislation to bring to an end the wrongful
conduct of the trust that lives on interstate com-
merce. I have drawn an act for the States to pass
and another for Congress to pass. If all the States
will enact and enforce the act suggested for them
and Congress will enact and enforce the act sug-
gested for it, I believe the trust will soon be curbed
and compelled to confine its operations to legiti-
mate boundaries, when, instead of being a curse, it
will become a public blessing.

I therefore suggest to the States and to Con-
gress the following acts:

Act suggested to the States.

Section i. Be it enacted that it shall be unlawful
for any person, partnership or corporation to give away in
this State, any goods, wares, or merchandise manufac-
tured, created, or grown in this State and not intended
for commerce with foreign nations or for commerce

SOME REMINISCENCES 177

among the several States or with the Indian tribes, or to
be used in the same, or to sell the same in this State,
at or below cost or so near to cost as to be in effect a
sale at or below cost, for the purpose and with the in-
tention of destroying a rival in business doing business in
this State, or of driving him out of the business he is
engaged in in this State.

Section 2. The courts of equity in this State are
hereby given power and authority to enjoin any of the
acts made unlawful by Section I of this act and to grant
any other proper relief under same, and to that end they
are authorized to require any person, firm, or corporation
sued in them under this act to produce their books and
papers and to answer all lawful questions.

Section 3. A person injured by any act made un-
lawful by Section i of this act may sue the party injuring
him for damages, and the court shall give him judgment
for three times the amount of what the jury places his
damages at, and also for a reasonable attorney's fee.

Section 4. It is hereby made the duty of the attorneys
for the commonwealth to put this act into force and ef-
fect, and they are hereby required to bring any suit under
this act for any party complaining to them which his or
its case may justify.

Section 5. Any person, partnership or corporation
violating the provisions of Section i of this act shall be
deemed guilty of a misdemeanor. Any person or mem-
ber of a partnership found guilty of such misdemeanor
shall be punished by fine and imprisonment or fine or im-
prisonment at the discretion of the court. Any corpora-
tion found guilty of such misdemeanor shall be fined at
the discretion of the court. Any officer, agent, or director
of a corporation knowing that said corporation is violating
Section i of this act and aiding therein shall, on conviction.

178 SOME REMINISCENCES

be fined and imprisoned or fined or imprisoned at the dis-
cretion of the court.

Act Suggested to Congress.

Section i. Be it enacted that it shall be unlawful for
any person, partnership or corporation to give away any
goods, wares, or merchandise intended for or used in com-
merce with foreign nations or intended for use in com-
merce among the several States or with the Indian tribes,
or to sell the same at or below cost or so near to cost as
to be in effect a sale at or below cost for the purpose and
with the intention of destroying a rival in business or
driving him out of business.

Section 2. The circuit courts of the United States
are hereby given power and authority to enjoin any of
the acts made unlawful by Section i of this act and to
grant any other proper relief under same, and to that
end they are authorized to require any person or corpora-
tion sued under this act to produce their books and papers
and to answer all lawful questions.

Section 3. A person injured by any act made un-
lawful by Section i of this act may sue the party injuring
him for damages in the circuit court of the United States
for the proper district, and the court shall give him judg-
ment for three times the amount of what the jury places
his damages at, and also for a reasonable attorney's fee.

Section 4. It is hereby made the duty of the United
States district attorneys to put this act into force and ef-
fect, and they are hereby required to bring any suit under
this act for any party complaining to them which his or
its case may justify.

Section 5. Any person, partnership or corporation
violating the provisions of Section i of this act shall be
deemed guilty of a misdemeanor. Any person or member
of a partnership found guilty of such misdemeanor shall

SOME REMINISCENCES 179

be punished by fine and imprisonment or fine or impris-
onment at the discretion of the court. Any corporation
found guilty of such misdemeanor shall be fined at the
discretion of the court. Any officer, agent, or director of
a corporation knowing that said corporation is violating
Section i of this act and aiding therein shall be deemed
guilty of a misdemeanor and shall, on conviction, be fined
and imprisoned or fined or imprisoned at the discretion of
the court.

Section 6. No person shall be exempted from the ob-
ligation to testify concerning violations of the provisions
of this act upon the ground that his testimony might tend
to incriminate him. But no person shall be prosecuted
for any violation of this act who has been required to tes-
tify concerning violations of it.

Section 7. This act shall be in force from its pas-
sage.

It will be argued that it will be very difiicult, if
not impossible, to probe into the business affairs of
a trust so as to find out its violations of these acts.
But little is worth accomplishing If there is no dif-
ficulty in accomplishing it. If it is impossible,
however, a different case is presented. It is not
impossible. With astute counsel provided by the
Government to investigate a case, aided by steno-
graphers and skilled accountants provided by the
Gov^ernment, and a sufficient fund provided by the
Government to enable the lawyer to command
every agency that is necessary, it will be impossible
for the trust so to conceal its piracies as to avoid
detection. But suppose it is able to conceal some

i«o

SOME REMINISCENCES

of them. Yet many would be unearthed, and if
these were punished to the limit of the law, the
trusts would become so terrorized that they would
nearly, if not entirely, go out of the game. It is
possible ♦"here may be no need for State legislation.
Everything touches interstate commerce in one way
or another.

THE HARRIMAN CONTROL

There is one other branch of this subject which
should, perhaps, receive some treatment here. Ac-
cording to the newspaper reports of the investiga-
tion made by the Interstate Commerce Commission
Mr. E. H. Harrlman is engaged in a process for
controlling a great portion, if not all, of the rail-
roads that may well arouse the astonishment if not
alarm of the people of this country. According to
those reports he secured a majority of the stock
of the Union Pacific Railway and, placing bonds
upon the company's property, he bought with the
proceeds of those bonds a majority of the stock of
the Southern Pacific Railway, and thus controll-
ing this corporation he placed bonds upon its prop-
erty, and with the proceeds of these bonds he
bought a majority of the stock of the Oregon
Short Line and the Oregon Railway and Naviga-
tion Company, and, repeating the process with one
road after another, he acquired control of these
roads and seven others, until he had absolute do-

SOME REMINISCENCES i8i

minion over 25,000 miles of railroad, besides the
Pacific Mail Steamship Company, the Portland
and Asiatic Steamship Company, and the steam-
ship line from New York to New Orleans,
formerly known as the Morgan Line. Of course
if Mr, Harriman can lawfully do this he may con-
tinue the operation until he dominates the entire
transportation of the United States and Its trans-
portation to foreign countries also. Do our insti-
tutions permit one man to acquire such a domina-
tion as this over the entire commerce of the coun-
try and to hold it against any legislative or judicial
attack upon It? If they do there Is some strange
shortcoming In our Institutions. I, for one, be-
lieve that such an anomalous situation as this can
be lawfully controlled and that Mr. Harriman can
be lawfully forced to release his grip upon the
country's commerce.

Upon Mr, Harriman's side It will be said
the law permitted him to buy a majority of
the shares of the Union Pacific Railway's stock,
which gave him a lawful right to place bonds
upon Its property for any purpose sanctioned by Its
charter, and one of those purposes was acquiring a
majority of the stock of the Southern Pacific Rail-
way, and so on, as he acquired control of each
subsequent company; that he has simply ac-
quired property by the exercise of a legal right and
that It would be spoliation pure and simple to take

i82 SOME REMINISCENCES

from him new property that he acquired lawfully.
That argument is not to be treated lightly.

In dealing with this subject it is well that we
should have before our minds the exact facts of
the Northern Securities Company, the way in
which the judges of the Supreme Court of the
United States stood in that case, and what they
said about it.

The case was this. A corporation was formed
under the laws of New Jersey, called the Northern
Securities Company, without capital (that is, $30,-
000 was paid into its treasury to meet expenses of
organization), but capable of issuing stock to al-
most any extent that might be required. The
stocls-holders of the Great Northern Railway Com-
pany and the stockholders of the Northern Pacific
Railway Company, two immense railway corpora-
tions that were in active competition with each
other in Interstate commerce, exchanged their stock
in these two corporations for shares of stock Issued
by the Northern Securities Company, and thus this
company came to own both of the railways and the
old competition between them was brought to an
end. The United States attacked this organization
under the Anti-trust Act as a combination and
agreement in restraint of interstate trade, through
ending the former competition between the two
railways. Mr. Justice Harlan delivered the opin-
ion of four justices, holding that the transaction

SOME REMINISCENCES 183

was a combination in restraint of interstate trade
and unlawful and void, and Mr. Justice Brewer
delivered his own opinion in which he concurred in
the same result. Mr. Justice White delivered a
dissenting opinion concurred in by Chief Justice
Fuller and Justices Peckham and Holmes, and Mr.
Justice Holmes delivered his own dissenting opin-
ion concurred in by the Chief Justice and Justices
White and Peckham.

The court is thus seen to have been very much
split up in the reasons given, but the important
fact is that a majority of the judges concurred in
holding that the transaction was a combination in
restraint of trade under the Anti-trust Act. Mr.
Justice Brewer in his concurring opinion seems to
have anticipated the possibility of just such a thing
happening as has happened in the Harriman case,
and while prepared to condemn it at once if it hap-
pened through the instrumentality of anything like
the holding company, the Northern Securities
Company, he seems to be a little tender- footed if
it happened through an individual acquiring a ma-
jority of the stock of the several corporations
through ordinary purchase and sale, as Mr. Har-
riman has acquired It. Mr. Justice Harlan uses
language frequently in the course of his opinion
which would seem to indicate that he and the three
Justices for whom he spoke were prepared to con-
demn such a transaction even though accomplished

i84 SOME REMINISCENCES

as Mr. Harrlman accomplished it, if its effect was
to put restraints upon interstate commerce. He
may not, however, have had such a transaction be-
fore his mind, but his language looks very much
as if he did have that identical transaction in view.
I will quote some of it. At page 354, 193 U. S.
R., he says, speaking of the holding company:

However that company may have acquired for itself
any stock in the Great Northern and Northern Pacific
Railway Companies, no matter how it obtained the means
to do so, all the stock it held or acquired in the constituent
companies was acquired and held to be used in suppressing
competition between those companies. It came into exis-
tence only for that purpose.

The learned judge certainly indicates here that
he considers the purpose for which the transaction
was got up of the utmost importance, and it cannot
be doubted that Mr. Harriman has gone into his
transaction with the purpose and intention of sup-
pressing competition between railways engaged in
interstate commerce which have heretofore been in
most active competition for that commerce.

On page 350 he says:

Whilst every instrumentality of domestic commerce is
subject to State control, every instrumentality of inter-
state commerce may be reached and controlled by national
authority, so far as to compel it to respect the rules for
such commerce lawfully established by Congress. No
corporate person can excuse a departure from or violation

SOME REMINISCENCES 185

of that rule under the plea that that which it has done or
omitted to do is permitted and not forbidden by the State
under whose authority it came into existence. We repeat
that no State can endow any of its corporations or any
combination of its citizens with authority to restrain inter-
state or international commerce or to disobey the national
will as manifested in legal enactments of Congress.

On page 347 he says:

It would seem that the government which represents
all cases, when acting within the limits of its powers, com-
pels obedience to its authority. It would mean that no de-
vice in evasion of its provisions, however skilfully such de-
vice may have been contrived, and no combination by
whomsoever formed, is beyond the reach of the supreme
law of the land if such device or combination, by its opera-
tion directly restrains commerce among the States or with
foreign nations in violation of the act of Congress * * *

In short, the court may make any order necessary to
bring about the dissolution or suppression of an illegal
combination that restrains interstate commerce (p. 346).

There is much more in the opinion to the same
effect, and it was all said after the judge had
shown (p. 334) that he had the case of a person
buying the controlling interest in the stock of a
railroad corporation or in several railroad corpora-
tions distinctly before his mind as one of the
cases In which a device might be got up to effect a
restraint upon Interstate commerce.

1 86 SOME REMINISCENCES

In summing up what the decision of the Su-
preme Court has established in respect to this
matter, Mr. Justice Harlan says (p. 332), That
to vitiate a combmation such as the act of Congress
condemns, it need not be shown that the combina-
tion, in fact, results or will result in a total sup-
pression of trade or in a complete monopoly, but
it is only essential to show that, by its necessary
operation, it tends to restrain interstate or inter-
national trade or commerce or tends to create a
monopoly in such trade or commerce and to de-
prive the public of the advantages that flow from
free competition.

We have it laid down for the law, then, that no
device which may be resorted to will close the eyes
of the court, and prevent its ascertaining just what
is the true purpose and effect of any transaction
whatever that touches interstate commerce, and
that if it finds that in "Its necessary operations it
tends to restrain interstate or International trade
or commerce, or tends to create a monopoly in such
trade or commerce," it is condemned by the law.
I do not see how Mr. Harriman's transactions can
stand a moment when subjected to this test.

And as to the plea that this view would be de-
priving Mr. Harriman of the full use and enjoy-
ment of his property, the court would probably
make the same answer that it made in the Joint
Traffic Association case to the argument that all

SOME REMINISCENCES 187

men have a "liberty" to make any harmless con-
tract which is protected by the Constitution, "that
is true, but they hold that right subject to the su-
perior and supreme right of Congress to regulate
commerce between the States and with foreign na-
tions."

There is still another maxim of the law, the
application of which to questions of this sort has
never yet been probed, and that is Salus popiili,
suprema lex — the safety of the people is the su-
preme law. That maxim finds expression in the
preamble to the Constitution of the United States,
which reads as follows :

We the people of the United States, in order to form
a more perfect Union, establish justice, insure domestic
tranquillity, provide for the common defence, promote the
general welfare, and secure the blessings of liberty to our-
selves and our posterity, do ordain and establish this con-
stitution for the United States of America.

"Promote the general welfare!" The Supreme
Court never yet has told us what limitations cir-
cumscribe those words. I have no doubt what-
ever, in my own mind, that as the safety of the
people requires those words to be expanded, they
will grow larger and larger until they take in every
case where the safety of the people is put in
jeopardy, and Mr. Harriman's device has put the
safety of the people in peril.

But after all, if Congress will pass the act for

1 88 SOME REMINISCENCES

controlling the trusts that I have drawn and will
amend the Sherman law as I suggest farther on,
the whole subject will be properly regulated and
we shall have no more trouble of any consequence.

In conclusion I desire to say that in my judg-
ment it Is a great pity President Roosevelt devoted
so much of his energies to getting Congress to
pass the rate bill. The people were not complain-
ing of rates, for they were not so high as to cause
discontent. But the people were complaining bit-
terly of rebates granted by the railroads and of
unjust discriminations made by the railroads, and
of the oppressions and injustices of the trusts.

If the President had devoted his great talents
and energies to getting Congress to give the people
relief In these matters he would have performed
one of the greatest public services ever performed
by a ruler.

It Is not possible for the Interstate Commerce
Commission to regulate interstate rates. There
Is competition between all interstate lines, and com-
petitors and competition alone can regulate those
rates. These Interstate rates depend upon so many
thousands of different considerations that skilled
men such as the railroads have are the only men
on earth who can regulate them. A commission
is as Incapable of dealing with them properly as it
is of regulating the tides. The interstate rates,

SOME REMINISCENCES 189

therefore, should have been left to competition, and
Congress has no power to deal with the Intrastate
rates. They must be dealt with by the State com-
missioners. Every word, therefore, of the Hep-
burn bill that deals with the regulation of Inter-
state rates Is vicious In Its tendencies; but every
word In It that seeks to destroy rebates and dis-
criminations Is vital and valuable.

SHERMAN ANTI-TRUST LAW

This act In Its present state Is the most vicious
piece of legislation that ever came from a law-
maker's hand. It deals with the most Intricate
and Important relations of life and required for
Its draftsman one familiar with Mr. Darwin's
"Orgin of Species" and the principles of evolution.
But I doubt If Its author, whoever he may be,
ever had the slightest familiarity with either. The
act condemns "every" restraint upon trade, and the
Supreme Court says It Is powerless to modify that
language and that the Inferior courts must carry
the act out literally.

But If the draftsman of the act had had any sort
of appreciation of the subject he would have
known that there can be no trade at all unless re-
strictions are put upon some sort of trade some-
where. I go Into partnership with Jones to export
tobacco from Richmond, Virginia. Jones Is much
addicted to dealing In stocks and I make him agree

I90 SOME REMINISCENCES

that he will cease dealing in stocks and give his
undivided attention to our business. We have
put a restriction upon trading in stocks but we
have greatly aided the export tobacco trade. And
so it is. There is no co-operative business that
does not put some sort of restraint upon some sort
of trade somewhere.

In the case of the United States against the
American Tobacco Company, decided by the
United States Circuit Court in New York City in
November, 1908, Lacombe, J., says of this act:

Every aggregation of individuals or corporations, for-
merly independent, immediately upon its franchise ter-
minates an existing competition : whether or not some
other competition may subsequently arise. The act as
above construed prohibits "every" contract or combina-
tion in restraint of competition. Size is not made the test.
Two individuals who have been driving rival express
wagons between villages in two contiguous States who
enter into a combination to join forces and operate a single
line restrain an existing competition, and it would seem
to make little difference whether they make such com-
bination more effective by forming a partnership or not.

The American Tobacco Company is made up of
a great many subsidiary companies that it has ac-
quired and incorporated with itself through which
it does an immense business, employing many
thousands of agents. All of these subsidiary com-
panies did business in competition with each other

SOME REMINISCENCES 191

before they were acquired by the American
Tobacco Company. When the decree came to be
framed it enjoined each of these subsidiary
companies from doing any more business until it
was shown to the court that the competition that
formerly existed between them had been restored.
This wiped out hundreds of millions of dollars of
property and ended one of the greatest businesses
of the country by the stroke of a pen. If this is
to be the law of the land, then all co-operative
business is ended.

When, therefore, the draftsman of the Sherman
law forbade "every" restraint upon trade he ought
to have known that he was killing trade and
arraying the laws of Congress against the laws of
nature.

What then should have been the principle
governing the draftsman of that act? He should
first of all have been a student of Darwin and
have understood the principles of evolution. He
should have understood the preceding principles
governing purpose and intention and he should
have understood that the principles of evolution
do not condemn the destruction of a person by
fair competition, but that they inexorably justify
It. He should have known that all they condemn
is wanton destruction from a bad motive. He
should have known that the destruction which fair
competition brings about Is that inexorable destruc-

192 SOME REMINISCENCES

tlon which we mean when we speak of the survival
of the fittest, the foundation upon which all nature
rests. He should have known that as this is the
foundation on which evolution rests it is the
natural right of the citizen to make any agreement
whatever with another citizen to do anything that
will advance his interests, that is not intended to do
a wanton injury to another, even if it destroys
that other through fair competition, and that that
natural right is therefore one of the "liberties" that
the Constitution intends to secure to the citizen.
He should have known therefore that when he
forbade "all restraints" upon trade that he was
laying the axe at the root of trade, that he was
depriving the citizens of their natural "liberties"
that are necessary for progressive civilization, and
that he was arraying an act of Congress against
the laws of nature.

What then should have been the first sentence
of his law? It should have forbidden all agree-
ments to impose unreasonable restraints upon trade
and all agreements that sought to do a wanton
injury to another and have stopped there, whereby
the people would have been left free to im-
pose those restraints upon trade that the ex-
perience of men have shown to be necessary to
trade, and they would have been left free to make
all those combinations necessary to co-operative
business; but would have been forbidden to put

SOME REMINISCENCES 193

in operation those vicious aims that are not in-
tended for their own benefit, but only for the
wanton destruction of their fellow-citizens.
Those practices are what the great trusts live on.
They cannot beat the small dealer if they are pre-
vented from killing him by wanton injuries to
him. They have to earn dividends upon a great
mass of water while he has to earn on solid gold
dollars alone. If they are left to fair competition
the independent will beat the trust all the time.
The law should be amended now, in accordance
with these views, providing, however, that rail-
roads and other public service corporations should
not be allowed to enter into agreements that put
restraints upon trade without the consent of the
Interstate Commerce Commission. A wide line
of demarcation should be drawn between corpora-
tions engaged in private business and railroads and
other public service corporations. The corpora-
tions engaged in private business should be dealt
with from the standpoint discussed. The railroad
and other public service corporations should be held
under the restraining hand of government.

It ought to be plain now where the financial
panic of 1907 came from. The President put the
Sherman trust law into effect according to its terms,
as he should hav^e done. The holders of stock in
industrial corporations that were doing perfectly
legitimate business said to themselves, if he is go-

13

194 SOME REMINISCENCES

Ing to enforce that law according to Its terms he
will destroy my corporation along with the others.
I am going to sell out while I can. This brought
all the stock into the market at once. But the same
influence that made the owner want to sell operated
on the mind of the buyer to keep him from buying,
consequently, all were sellers and there were no
buyers, and the market sagged on down lower and
lower until the condition of panic arose, and if the
law remains as it is and in enforced literally as it
should be, there will be many more panics in the
future.

Fmally, it is my deliberate belief that if this
subject is ever brought properly before the Su-
preme Court there will be such a modification of
what has been done as will give the country relief.
If it is not, then Congress must so modify the Sher-
man law as to make it tolerable. It is intolerable
now.

CHAPTER V

FREE SILVER AND POLITICS

Toward the end of the State debt fight, Page
McCarty (the same man who fought the duel)
started a debt-paying daily paper in Richmond
called The Times. A gentleman of large means
in Richmond, named Joseph Bryan, got so far
drawn into this enterprise that it resulted in his
coming to own the paper. In 1890 he offered me
the place of editorial writer for The Times.
Whilst I was conducting the State debt fight it had
been one of the terms of my contract with my
clients that I should devote myself exclusively to
their business, so that when the contest ended I
was entirely without a clientelle. I accepted Mr.
Bryan's offer and became sole editorial writer for
The Times.

The "free silver" issue was just then developing,
so that I had a noble theme to devote myself to, and
I went into that contest, against free silver, with
all my heart and soul. It was my business to
watch all the currents of opinion, and I looked
over many newspapers each day to see how they
were setting. When Mr. Cleveland sent his
Venezuela message to Congress I was satisfied free

196 SOME REMINISCENCES

silver was practically dead. The country was re-
covering from the disastrous panic of 1893 and the
clamor of the pessimist was no longer attended to.
But this red rag shaken in Great Britain's face
changed everything. The business interests of the
whole countiy were then thrown into the most
violent panic. All the ground that had been re-
covered was lost and pessimism became the con-
dition everywhere. William J. Bryan arose out of
the conditions brought about by Mr. Cleveland's
Venezuela message. From the day that message
went into Congress free silver began to take on
a new life until it grew to the proportions that we
saw in 1896.

What could have induced Mr. Cleveland to do
anything so foolish? It was done just as he came
back from one of his duck-hunts.

In one of the debates which followed Senator
Ben Hill's assault In the Senate on Mahone's de-
mocracy Senator Don Cameron of Pennsylvania,
who was a great friend and advocate of Mahone,
came rushing from the restaurant and pitched head-
long into the discussion in an utterly Irrelevant and
wholly disconnected way. A reporter of the New
York World, In giving an account of It, said,
"Something he had eaten had turned his face very
red." I have always thought that something Mr.
Cleveland had eaten on that duck-hunt had upset
his usually sound judgment. But whether this be

SOME REMINISCENCES 197

true or not, Mr. Cleveland turned the trick. He
created the free silver of 1896.

I will digress a little at this point to tell some
incidents connected with Mr. Cleveland. All the
world knows his passion for fishing. A gentle-
man named Harrison has a fine trout stream near
Leesburg, Virginia. Some time after he had com-
pleted his great fight against free silver, in which
every Senator and Representative from Virginia
had opposed him, Mr. Cleveland paid Mr. Har-
rison a visit to fish his trout stream. In the middle
of the day, when they suspended fishing for a
julep and luncheon, Mr. Cleveland said, "Har-
rison, these Virginians are an open, frank, out-
spoken people that I like. But, in the name of
common sense, where do they get their public men
from?"

As every one knows, the Honorable Grover could
be a gentleman of very bad manners when he set
his mind that way. In 1886 or 1887 I had a
most excellent opportunity for finding that out.
Some well-meaning, but ill-advised parties who
thought they might intervene and procure an ad-
justment between the State and her creditors got up
a scheme for having Mr. Cleveland, Mr. Bayard,
and one or two others thrust themselves in between
the two and try to bring about a settlement. Mr.
Cleveland was immensely popular in Virginia at
that time, and I thought if the movement was ju-

198 SOME REMINISCENCES

diciously guided something might be made to come
of it, but, directed by the parties who had charge of
it I saw nothing but disaster to all concerned. I
determined, therefore, to go to New York and see
Mr. Cleveland and try to get him to act according
to my advice. He was then a member of a law
firm of which Hon. Wayne McVeagh, of Pennsyl-
vania, whom I knew very well, was also a member.
I went to the office and asked him to introduce me
to Mr. Cleveland and say a few words in behalf
of my project to him. McVeagh said, "No, go
and introduce yourself and your scheme to him;
you will find him most approachable, and he does
not like introductions." I went to his office, but
Mr. Cleveland was not there, and I left my card
saying I would return later.

In an hour I returned and was shown into his
office. He was seated at his desk with my card
before him, resting against the ink-stand, and his
head resting upon his arms which were folded on
the desk. After introducing myself and being re-
ceived with a grunt that offended me at the outset,
I told him why I had called. He growled out a
few words with a manner that indicated he felt no
interest in me or my mission, and would be glad
if I would go out as soon as possible. I fired up
at this and said to him something to the effect that
I should not allow his bad manners to deter me
from explaining the duty I had come there to per-

SOME REMINISCENCES 199

form. I said, "Mr. Cleveland, unless you give
proper attention to this very important matter,
your great name will become involved in what will
become a scandal," He grunted out something
about being able to take care of his good name, by
which time I was in a rage. Turning on him I
said something to the effect that he and his name
might go to the bad place as far as I was concerned,
and I stalked out of his office. I spoke of the
interview freely and the Southern residents of New
York took it up and discussed it freely. In conse-
quence a reporter of the Baltimore Sun called on
Mr. Cleveland and asked him about it. The Sun
stated that he said he did not take in the situation
or appreciate my relation to the subject. To a
friend of mine he said that I was under the influence
of liquor, which was not a fact, and I was sur-
prised that any one so conversant with such mat-
ters as Mr. Cleveland was should have fallen into
that error.

It must not be supposed that I am inimical to
Mr. Cleveland. Upon the contrary, he did this
country, in my opinion, two of the greatest pieces
of service ever rendered it, when he whipped free
silver and suppressed the Chicago riots, — and the
country should be forever grateful to him for those
two services.*

*This was written during Mr. Cleveland's life, but I let it
stand.

200 SOME REMINISCENCES

I return now to free silver.

I fought free silver in The Times with all
the energies of my nature, and we had a following
in the State which was far greater than any one
would suppose who judged by the election returns
of November, 1896, between Bryan and McKinley.
To make this understood I must go back a little.
When Mahone got complete possession of the State
he set up one of the most infamous governments
that any people ever had to live under. Judges
Claiborne and Mays, as before related in this work,
will serve to indicate the character of the govern-
ment that Mahone imposed upon the people of
Virginia. All regard for decency and morality was
discarded, and the government of the State became
little more than an organization for plunder.

In the fall of 1883 a new Legislature was
elected and the white people of the State, roused
to such a fury as the people of Virginia have never
been roused to, determined to elect a majority of
the Legislature at all cost. I have never seen a
people so united and so resolved as the white
people of Virginia were at that election. Just be-
fore the day of election the intense strain gave
way in Danville and there was a riot between the
whites and the blacks. It has never been known
how many negroes were killed in this riot, but it
was a fearful experience. I was living in New
York when the day of election came on, but I had

SOME REMINISCENCES 201

retained my citizenship in Virginia and 1 came to
Richmond to vote. Business was suspended for
the day, and there was something in the air that
made every one feel that we were in the presence of
some overpowering and tremendous event. About
the middle of the day I was sitting in the Rich-
mond Club with some thirty-five or forty young
men and we were discussing the progress of events.
Presently I said, "Gentlemen, I don't care who
knows it, I am armed," and I pulled out a large
Colt's revolver. There was a sort of smile went
around, and first one, then another, pulled out a
pistol, and soon it appeared that every man in the
room was armed. I tremble still to think what
would have been the consequence if a riot had been
started that day in Richmond, for the whole popu-
lation was armed and ready for a riot.

The white people carried the election and came
into control of both bodies of the Legislature.
They thereupon determined that they would never
run the risk of falling under negro domination
again, and they accordingly amended the election
laws so that the officers of election, if so inclined,
could stuff the ballot boxes and cause them to make
any returns that were desired. Under these statutes
the elections in Virginia became a farce. We got
rid of negro government, but we got in place of it
a government resting upon fraud and chicanery,
and it very soon became a serious question which

202 SOME REMINISCENCES

was worse, a negro government or a white govern-
ment resting upon stuffed ballot boxes.

This condition of affairs had become so gener-
ally known that Mr. Hanna, chairman of the Re-
publican National Committee, had determined to
make no fight in Virginia in the election of 1896,
but to let the State go for Bryan by default.
Early in September two leading Republicans in
Virginia, Edmund Waddill, who was appointed
by Mr. McKinley United States Judge for the
Eastern District of Virginia, and Col. Jos. P.
Brady, who was appointed by Mr. McKinley Col-
lector of Revenue for the Eastern District of Vir-
ginia, came to me and asked me to go with them
to New York to see Mr. Hanna and ask him to
send the necessary funds into Virginia to make a
contest there in the coming election. The Times'
fight for the gold standard had produced an Im-
pression, and we had a considerable following
ready to split with the so-called Democratic party
on the question of free silver.

I went with these gentlemen to New York, and
saw Mr. Hanna at the Waldorf-Astoria. He said
right off, in the most positive way, that the elec-
tions in Virginia were all fraudulent, that they
would cheat him out of any vote that he got, and
that he would not, therefore, send a dollar there
or take any part in the contest there. I then asked
him to give me a hearing, and he very courteously

SOME REMINISCENCES 203

did so. The Important thing that I told him, the
thing that impressed him most, was that we, the
gold-standard men, had a real and important fol-
lowing and that we worked against and would
have men at the polls to prevent cheating. Upon
my representations on this head, he finally agreed
to make a fight in Virginia, and a fine fight was
made there by the Republican party. I don't know
how much money was sent there, but I have heard
it was as much as $160,000. Further, we got
up a Palmer and Buckner organization and Mr.
Hanna gave that great assistance. I thought,
therefore, that we had a very fair chance to carry
the State for the gold standard; but when the
election came off it was found that all the money
that had been spent had just as well have been
thrown in the Potomac River. In the white coun-
ties, where the white people would not allow them-
selves to be cheated, McKinley beat Bryan in many
of them and ran up with him in all the others.
But in the negro counties (all the negroes voting
the Republican ticket), Bryan got overwhelming
majorities and thus carried the State by about 20,-
000 votes. If the vote had been counted as cast,
McKinley would have carried the State by a large
majority.

The greatest blunder that was ever made by a
political party was the act of the Republican party
directly after the war in conferring upon all the

204 SOME REMINISCENCES

negroes the right to vote. It takes but a small
portion of degenerate white men in any Southern
State, added to the whole mass of the negroes, to
make a majority of the votes in the State. The
white people of a Southern State simply cannot
submit to a government founded on the negro
vote. They will suffer extermination before they
will submit to it, and any Northern community of
white men would do the same. In giving the
negro the vote the Republican party attempted to
do something which is simply impossible and it
has received absolutely no returns for the foolish
act.

But this it has done. The white people of the
South are naturally the most conservative and law-
abiding people in the world. Let alone, they
would never ally themselves with free silver or
any other unsound fad. Not only so, but there is
a very large element amongst them, descendants
of the old Whigs, and protective tariff men, which
has a strong penchant for the Republican party.
If there had been no negro question in the South
to force all the white men to stand together as one
man, long before this there would have been a
reputable Republican party in every Southern State
that would have contested the control of each with
fair, if not even, chances to win. Indeed, I believe
that each Southern State would before this have
been controlled by the Republican party. In giv-

SOME REMINISCENCES 205

ing the whole negro population the right to vote
the Republican party therefore inflicted upon the
white people of the South the most horrible curse
that any people ever suffered from, and they killed
their own goose of the golden egg.

I am happy to say that in Virigina we have, by
constitutional provisions, so eliminated the bad
elements of the suffrage, both white and black, that
fraudulent elections are pretty well ended and we
have a perfectly sound government in all respects.
I am happy to believe, too, that my editorial ar-
ticles in The Times aroused the moral elements in
the State and brought them together to demand
and secure the abandonment of frauds in elections.

With one more incident in my life I shall close
these reminiscences.

In 1907 The Neale Publishing Company, of
New York and Washington, published for me a
small volume entitled "A History of Virginia
Banks and Banking Prior to the Civil War, with
an Essay Upon the Banking System Needed."
The prevalent notion about the State Banks that
the old long-settled States had prior to 1861 is
very erroneous. Virginia had one of the best (if
not the best) banking systems that ever existed,
and I have given a full account of it in the volume
referred to. But the most valuable part of it, if
it has any value, is a discussion in the third chapter

2o6 SOME REMINISCENCES

of the elementary principles involved in money and
banking.

My intercourse with men has taught me that a
very great proportion of them think that com-
merce— trade — is carried on by exchanging money,
coins or currency notes — for commodities. This is
another error and one that is productive of the
most injurious consequences. Commerce, in its
large sense, is nothing but the exchange by one
locality of its surplus commodities for the surplus
commodities of another locality. The said ex-
change is effected by transferring upon the books of
the banks the dollar values of each commodity in
the form of credits. Thus, Jones, in the city of
Richmond, Virginia, buys 10,000 pounds of cotton
at 10 cents a pound — $1,000 — from Thompson,
of Wilmington, North Carolina. Jones sends
Thompson his check on the First National Bank
of Richmond for $1,000. Smith, of Wilmington,
buys 10,000 pounds of bacon from Dixon of Rich-
mond at 10 cents a pound — $1,000 — and sends
him his check on the First National Bank of Wil-
mington in payment. Thompson deposits Jones's
check In the First National Bank of Wilmington
and it sends the check to the First National Bank
of Richmond for collection that Is under an order
for the latter bank to send $1,000 In money to the
Wilmington bank. On the day that check gets to
the Richmond bank, Dixon deposits Smith's check

SOME REMINISCENCES 207

in it which was an order for the Richmond bank
to send it to the Wilmington bank, with directions
that the Wilmington bank should send to Rich-
mond $1,000 in money. But the Richmond bank,
on looking into the case, asks, Why go through
all this tom-foolery of sending $1,000 to Wilming-
ton and bringing $1,000 from Wilmington here?
We will settle the matter thus — we will take the
credit on our books for $1,000 which Jones has,
and transfer it to the credit of Dixon, and thus he
will get paid for his bacon; and we will send
Smith's check hack to the Wilmington bank and tell
it to transfer the $1,000 credit on its books that
Smith has to the account of Thompson, and thus
Thompson will be paid for his cotton.

This is done, the transaction is closed up to the
satisfaction of every one, and not a dollar of money
has been used in it. The thing at bottom was
nothing but an exchange of some bacon that Rich-
mond had no use for, for some cotton that Wil-
mington had no use for, effected by exchanging the
dollar value of the commodities on the books of
the banks by transferring credits on those books
from one person to another. This is commerce.
If ninety-nine transactions in every one hundred in
commerce were run down to the bottom they would
be found to be in substance the Richmond and
Wilmington transaction.

Now the part that the dollar plays in these trans-

2o8 SOME REMINISCENCES

actions is the all-important one, and it is the point
that the great body of the people are absolutely
ignorant on, and from their ignorance on it has
proceeded the awful financial disasters that the
country has suffered from.

Bearing in mind the main proposition that com-
merce is exchanging one commodity for another,
how are we to get a basis for those exchanges?
How is a man to know the number of bushels of
wheat that are to be given for a certain number of
bushels of corn, or how many pounds of cotton are
to be given for a certain number of pounds of
bacon? To determine this there must be a third
agency, and this third agency we call "the dollar."

The United States Government has enacted by
law that 25 8-10 grains of gold, 9-10 fine, shall be
"the dollar," and that it shall be the standard of
value. It could have called it a "sequin" or any-
thing else, but it chose to call it a "dollar." Ac-
cordingly, all men Interested In wheat got together
and determined that in the state of demand for
and supply of wheat, one bushel of wheat was the
equal in value of 25 8-10 grains of gold, 9-10 fine.
In the then state of demand for and supply of gold.
Mark this statement well, for It is at the bottom
of the whole business and of all commerce. Then
all the men Interested In corn got together and de-
termined that in the then state of the supply of
and demand for corn two bushels of corn were

SOME REMINISCENCES 209

the equal in value of 25 8-10 grains of gold, 9-10
fine, in the then state of demand for and supply of
gold. It was to say that a bushel of wheat was
at that time worth a dollar, and that a bushel of
corn was at that time worth fifty cents. That
being established we had a basis for exchanging
wheat for corn.

Now of course It Is a mere figure of speech to
say that all these men "got together." The Idea
I Intend to convey Is that the price established
Is the result of the codification of opinions by the
law of supply and demand. The value of the
dollar then is established by comparing the gold
in it with a commodity under the law of supply
and demand. It has been much contended in high
quarters that the value of the dollar depends
upon the labor required to produce It. But you
may put any amount of labor upon the production
of the gold in a dollar, but if there Is no demand
for the gold, it will have no value. The value of
the dollar, as the value of anything else, depends
upon the law of supply and demand.

This great fact Is now to be noted. The Im-
portance of the dollar is not, as generally believed,
as a purchasing agency, but as a standard of value
for creating a basis on which commodities may be
exchanged. When that basis Is established busi-
ness has little further use for the dollar. Business
carries itself along after that by exchanging com-

14

2IO SOME REMINISCENCES

modities by transferring their credit values upon
the books of the banks.

It is absolutely necessary, for a stable currency,
and for peace and order in business, that these
and their cognate principles should be under-
stood by the voters of the nation; and yet it is
my opinion, judging from my own experience in
my contact with men, that there is not one man in
one thousand that understands them. In my re-
cent book, "A History of Virginia Banks and
Banking," I have undertaken to explain and illus-
trate these principles in a way that will enable the
simplest and plainest citizen to understand them.
If I could only feel that this explanation will be
conveyed to the great mass of the voters so as to
end all chance of a future William J. Bryan, I
should feel that I had not lived in vain.

630